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READINGS IN INTERNATIONAL LAW 

FROM THE NAVAL WAR COLLEGE REVIEW 

1947-1977 









For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 

Stock No. 008-047-00301-3 



UJS. NAVAL WAR COLLEGE 
INTERNATIONAL LAW STUDIES 

Readings in International Law from the 

Naval War College Review 1947-1977 

edited by 

Richard B. Lillich 

and 

John Norton Moore 



Volume 61 



(Volume I of Readings) 



Role of International Law and an Evolving Ocean Law 




jm 



Naval War College Press 

Newport, Rhode Island 

1980 



Library of Congress Cataloging in Publication Data 

Main entry under title: 

Readings in international law from the Naval H ar 
College Review, 1947-1977. 

(U.S. Naval War College international law studies: v. 61-62) 

Includes bibliographical references and indexes. 

CONTENTS: v. 1. Role of international law and an evolving ocean law — 
v. 2. The use of force, human rights, and general international legal issues. 

1. International law — Addresses, essays, lectures. 2. Maritime law — 
Addresses, essays, lectures. I. Lillich. Richard B. II. Moore, John Norton. 
1937- III. United States. Naval War College. Naval War College 

Review. IV. Series: United States. Naval War College. International law 
studies; v. 61-62. 
JX1295.U4 vol. 61-62 [JX3091] ills |.V 11.08] 79-15091 



VOLUME I 

THE ROLE OF INTERNATIONAL LAW AND AN EVOLVING OCEANS LAW 

TABLE OF CONTENTS 
Chapter Page 

ACKNOWLEDGEMENTS v 

INTRODUCTION vii 

John Norton Moore 

I THE ROLE OF LAW IN THE INTERNATIONAL SYSTEM 

A. General Introduction 

Introduction to International Law 1 

Richard R. Baxter 

An Introduction to the Role of Law 

in the World Community 11 

W. Thomas Mallison Jr. 

The Role of International Law 

in the World Community 22 

John H. Spencer 

What is International Law? 35 

James F. Hogg 

International Law and the World Community: 
The Meaning of Words, the Nature of Things, 

and the Face of the International Order 44 

Louis F.E. Goldie 

Legal Foundations of International Relations 57 

Manley O. Hudson 

B. Soviet Attitudes Toward International Law 

Soviet Interpretation and Application of International Law . . 62 
John N. Hazard 

Soviet Interpretation and Application of International Law . . 76 
Oliver J. Lissitzyn 

The Soviet View of International Law 90 

Oliver J. Lissitzyn 

The Soviet View on International Law 101 

Leon S. Lipson 



11 



C. The Political Setting 

Recent Trends of International Law 115 

Nicholas deB. Katzenbach 

New Trends in International Law: 

The Challenges of the Ecological Age 122 

Richard A. Falk 

Political Factors in the Formulation of Strategy 130 

Harold D. Lass well 

Political Factors in the Formulation of National Strategy . . .138 
Harold D. Lasswell 

The Nature of the Nation-State System 149 

David D. Warren 

D. The Relevance of Law for the Naval Officer 

Aspects of International Law Affecting 

the Naval Commander 157 

Geoffrey E. Carlisle 

Introduction to International Law 

As It Pertains to the Naval Officer 167 

Wilfred A. Hearn 

II OCEANS LAW 

A. General 

The Law of the High Seas in Times of Peace 175 

Myres S. McDougal 

The Law of the Sea Conference: 

Issues in Current Negotiations 1 88 

Lewis M. Alexander 

The Possible Effects on Maritime Operations 

of Any Future Convention of the Law of the Sea 199 

Edward Ashmore 

International Law of the Sea: A Review of States' 

Offshore Claims and Competences 208 

Louis F.E. Goldie 

An Inter- American Approach to the Law of the Sea? . . . .232 
Charles L. Cochran 

Freedom of the Seas 239 

Ephraim P. Holmes 



Ill 



New Issues and New Interest in the Law of the Sea 245 

Joseph B. McDevitt 

Current International Law Problems of the Navy 251 

Joseph B. McDevitt 

Marine Mineral Resources: National Security 

and National Jurisdiction 260 

Robert A. Frosch 

A Maritime Survey for 1970: Seamen, Fishermen, 

Prospectors: Who will own the Oceans? 267 

John D. Hayes 

Towards a New Order of U.S. Maritime Policy 276 

Geoffrey Kemp & Harlan K. UUman 

Special Aspects of Jurisdiction at Sea 293 

Wilfred A. Hearn 

Jurisdiction 303 

Philip C. Jessup 

B. Navigation (the territorial sea, regimes of passage 
and archipelagic claims) 

Special Aspects of Jurisdiction at Sea 319 

Brunson MacChesney 

Archipelago Concept of Limits of Territorial Seas 328 

John R. Brock 

What is Innocent Passage? 365 

Peter B. Walker 

C. Continental Margin Minerals 

Oil and Gas in the Oceans 388 

Herman T. Franssen 

Strategic Implications of Continental Shelves 404 

Jose A. Alvarez 

D. Fisheries 

Ocean Fisheries: National Instrument 

for International Stability 425 

John T. Robison 

E. Environmental Protection 

Our Navigable Waters -Polluted and Otherwise 449 

Charles W. Koburger, Jr. 



IV 

F. The Deep Seabeds and Polar Regions 

A Legal Regime for the Resources of the Seabed 
and Subsoil of the Deep Sea: A Brewing Problem 

for International Lawmakers 457 

Horace B. Robertson, Jr. 

Emerging Legal Problems of the Deep Seas 

and Polar Regions 504 

Richard B. Bilder 

International Control of Deep Sea Mineral Resources .... 520 
Wayne J. Smith 

The Deep Sea Resources 529 

John D. Lewis 

G. Military Uses 

Authority to Use Force on the High Seas 551 

Myres S. McDougal 

Electronic Reconnaissance from the High Seas 

and International Law 563 

Oliver J. Lissitzyn 

The Seabed Arms Control Issue 1967-1971- 

A Superpower Symbiosis? 572 

James A. Barry, Jr. 

Changing Naval Operations and Military Intervention .... 586 
Michael MccGwire 

II. Soviet, Chinese and Third World Views of Oceans Law 

The Soviet Navy and Oceans Law 609 

Mark W. Janis 

The People's Republic of China and the Law of the Sea: 

Caracas 1974 and Geneva 1975 616 

Herman Zivetz 

Saudi Arabia and the Law of the Sea 633 

James P. Piscatori 

BIOGRAPHICAL DESCRIPTION OF AUTHORS 649 

INDEX TO VOLUME I 659 



ACKNOWLEDGEMENTS 

We would like to acknowledge our debt to Commander J. Ashley 
Roach and Commander Dennis McCoy who shepherded these volumes 
for the Naval War College with their usual applomb and impressive 
Navy efficiency. We are also indebted to Ms. Lisa Montgomery who did 
much of the initial editing necessary to move from selected Review 
articles to a two-volume collection of readings. Lisa's good spirit and 
charm under fire deserve a commendation traditionally awarded only to 
those in uniform. Above all, we would like to thank the NaVal War 
College, whose interest in international law has made these readings 
possible, and the authors, whose thought and dedication is what it's all 
about. 



Vll 



INTRODUCTION TO VOLUME I 
(The Role of International Law and An Evolving Ocean Law) 

by 

John Norton Moore* 

International Law at the Naval War College 

For the past three decades some of the best writing on international 
law has appeared in the Naval War College Review. This is no accident. 
For the Naval War College has traditionally had one of the finest 
programs in international law in the United States. The core of the 
program is the Stockton Chair of International Law which has attracted 
top international legal scholars. In addition, the College regularly invites 
distinguished international jurists to deliver a series of lectures to the 
student body on basic aspects of international law. For many years the 
College also sponsored an "International Law Week" which brought 
together a group of twenty or thirty international lawyers from 
government and the private sector to discuss and teach about current 
international legal problems. The morning "briefing sessions" of this 
event were always exciting and were looked forward to eagerly by an 
entire generation of international lawyers in the United States. Indeed, 
with the possible exception of the Annual Meeting of the American 
Society of International Law, I know of no regular international legal 
meeting that rivaled these Naval War College sessions for intellectual 
excitement and high caliber discussion. 

As if this were not enough, the War College is blessed with two other 
strengths that have greatly contributed to its success in international 



*Walter L. Brown, Professor of Law and Director, the Center for Oceans Law 
and Policy, the University of Virginia. Formerly Counselor on International Law 
to the Department of State, United States Ambassador to the Law of the Sea 
Conference and Chairman, the National Security Council Interagency Task Force 
on the Law of the Sea. 



Vlll 



law. Like Mr. Jefferson's University to the South, the War College 
consistently has maintained the finest tradition of academic freedom. 
Those disagreeing with current policies have shared the platform with 
Assistant Secretaries and Admirals. For example, some of the finest 
debates that I have heard on the legal issues of the Indo-China War took 
place before the student body of the War College. On one occasion 
when I disagreed fundamentally with then current policy in the law of 
the sea negotiations I was privileged to be the beneficiary of this 
tradition. In short, the War College does not fit the stereotype of a rigid 
institution listening only to the official policy of the moment and 
ideologically aligned with Dr. Strangelove. 

The second great strength of the War College is that as one of the 
senior service colleges, along with the National Defense University and 
the Army War College, the College attracts top senior officers and civil 
servants from every major foreign policy establishment in Washington. 
That includes the National Security Council, the State Department, the 
Navy, the Central Intelligence Agency, the Defense Department and 
many others. Since Naval War College assignments are viewed as a 
career step to the highest positions and are much sought after, the 
ability and experience of the students is exceptionally high. In a class 
discussion of "Mayaguez" or the Cuban Missile Crisis invariably a 
number of students participated in significant roles. These students in 
turn frequently turn out excellent work for publication. 

The Structure of Volumes I and II 

With this rich tradition in international law it is not surprising that 
some of the classics of international law have appeared in the Naval War 
College Review and that the list of contributors reads like a Who's Who 
of International Law. Manley O. Hudson, Philip Jessup, Charles 
Fenwick, Myres McDougal, Richard Baxter, Louis Sohn, Richard Falk, 
Brunson McChesney, Oliver Lissitzyn, Leon Lipson, John Hazard, 
Harold Lasswell, Nicholas Katzenbach, Richard Lillich, Richard Bilder, 
Shabtai Rosenne, Colonel Draper, Rita Hauser, Fred Goldie, Howard 
Levie and many others have all written for the Review. In addition, 
many of the finest Navy lawyers have contributed including: Rear 
Admiral Dusty Miller, Rear Admiral Horace "Robbie" Robertson, Rear 
Admiral Joseph McDevitt and Captain John Brock. To read the list of 
contributors is to want to read what they have written. It is this interest 
in making these extraordinary contributions widely available that has 
motivated these two volumes of Readings in International Law from 
the Naval War College Review 1947-1977. 

The writings group together around three major themes; first, the 
role of law in the international system; second, ocean law; and third, 
the law of conflict management (the use of force). In addition, in 
keeping with the times there have also been a significant number of 
excellent contributions on human rights and a few on classic interna- 
tional law topics such as jurisdiction, immunities, status of the armed 
forces abroad, recognition and trusteeship obligations. Unfortunately 
space considerations precluded our republishing all deserving 



IX 



contributions, but in the interest of wide availability we have sought to 
include as many as possible, even if we felt that a piece was primarily of 
historical significance. 

Volume I includes readings in the first two categories, the role of law 
and ocean law. Volume II centers on the law of conflict management 
but it also includes the human rights and miscellaneous articles. 

The Role of International Law 

The role of international law is one of the most important and 
fundamental issues in international law. It is also one of the most 
misunderstood issues. It is gratifying, then, to see so much excellent 
attention to the subject in these readings. 

There are a number of persistent misperceptions about international 
law and particularly about its utility in national security decisions. The 
principal ones that together might be called the extreme "realpolitic 
view" seem to be: 

-there is no international legislature to make international law so 

there cannot be any such law; 

-there are few areas where nations are subjected to compulsory 

jurisdiction in an impartial tribunal in the present international 

system and as a result there is little law; 

-there is no sanction for violation of international law and as a 

result nations are not really constrained by international law; 

-law is solely a restraint system and it cannot help decision 

makers concerned with solutions for complex national security 

decisions; 

-international law is vague and indeterminate and as such is 

always only after the fact rhetoric; 

-in the often messy and challenging real world it is superfluous 

to seek to appraise national conduct by reference to morality or 

legality ; and 

—as a matter of empirical observation law simply is not seriously 

considered in most key national security decisions and as such it 

is not important. 

To be fair to the proponents of these views most would concede that 
law has a marginal impact but in their heart of hearts they do not 
believe it is really significant. As I 1 and many others have written 
elsewhere, and the contributors to this volume would agree, the 
proponents of these views are profoundly wrong and indeed naive, 
though priding themselves on their tough minded realism. Before 
briefly answering each of these misperceptions, however, it is only fair 
to have a look at a few misperceptions on the other side that might be 
called the extreme "legalist view." These include: 

-attempting to demonstrate the relevance of law for national 

security decisions by demonstrating its relevance in broad areas of 

cooperative endeavor among nations; 



See (e.g.) J.N. Moore, "The Legal Tradition and the Management of National 
Security," in Toward World Order and Human Dignity, 321 (Reisman and 
Weston, eds. 1976). 



-overemphasizing the relevance of judicial process or compulsory 

third party dispute settlement as a modality of dealing with 

critical national security decisions; 

-reliance on conceptions of international law which conceive of 

law as a static body of rules divorced from underlying community 

policies; and 

-the automatic equating of lawful and unlawful policies with 

actions respectively consistent and inconsistent with the national 

interest and vice versa. 

How are these misperceptions answered and what do the readings in 
this volume contribute on these points? 

With respect to the classic "realpolitik" view a close reading of the 
articles in Part I answers these misperceptions well without falling into 
the counter errors of the extreme "legalists." Thus it is pointed out that 
though there is no central legislature in the international system there is 
an effectively functioning "constitutive process" that makes binding 
prescriptions in as real a sense as the legislature of New York. This 
process includes treaty conferences, certain international institutions, 
and a more diffuse but no less real development of customary 
international law through state practice. 

Similary, it is pointed out that in some areas there exist today 
compulsory third party dispute settlement, some even close to the core 
of national power. These areas are growing all the time as the recent 
Soviet acceptance of compulsory dispute settlement machinery in the 
law of the sea negotiations illustrates. But more to the point, the 
international system simply has a looser and more diffuse process of 
invocation and application of legal norms. It does not solely depend on 
judicial application. Rather the more usual application machinery is the 
foreign office of affected states. That there is no court is not decisive 
by any sophisticated standards of jurisprudence though the absence of 
courts in key areas does contribute to difficulty in the application of 
law. 

The "absence of sanction" problem is handled well in virtually all of 
the articles. As jurisprudence has become more sophisticated it has 
become evident that patterns of compliance with legal or "authorita- 
tive" norms are a more meaningful social indicator of the effectiveness 
of a legal system than sanction alone (which is but one factor in 
promoting compliance). This in turn has focused inquiry on other 
factors inducing compliance and "surprise" (or were you surprised) 
community expectations about the "authoritativeness" of norms is a 
major factor in the communities compliance with them. When 
community expectations of authoritativeness are low, as with the 
Supreme Court "Bible reading" decisions, compliance will be low 
despite reliable sanctions for violation. And when such expectations are 
high, as with rules concerning traffic lights, compliance will be high 
even when there is no policeman (or even any other cars). The moral, of 
course, is that to focus only on an absence of classic "big stick" 
sanctions is to miss much of the functioning of a legal system including 
the international legal system. Moreover, the assumption of no sanction 
may miss a more diffuse but nevertheless real process of interaction 
leading to imposition of real costs for violation of authoritative 



XI 



community norms. Indeed, to make a really sophisticated analysis of 
international legal sanction, among other things we would even want to 
examine the costs of domestic dissent engendered by expectations that 
certain behavior is internationally unlawful. 

One of the most common errors is to focus on law solely as a 
restraint system. That is to think only in terms of "the bad man" or 
"the bad nation" and the extent to which they will be restrained by 
law. As every modern legal philosopher has shown, however, law has 
many other functions including guiding the "puzzled nation" and 
enabling planning for cooperative behavior. Thus we need to examine 
the utility of law and the legal tradition for the national security 
manager. What role can law play in long-range planning to reduce crises 
(i.e., a new law of the sea with guarantees of transit through straits or a 
new SALT agreement to freeze or reduce levels of strategic forces. We 
would hardly regard a national security planner as sophisticated if he 
ignored developments in SALT, the law of the sea, or the new Panama 
Canal treaties.) What role can law play in crisis management in assessing 
goals, analyzing and creating policy options and communicating reasons 
for the option chosen? And what role can it play in continuing review 
of national and third party conduct? When the inquiry is broadened in 
this way the temptation to think of law only as restraint begins to yield 
to more realistic assessment of the potential role of law. 

As to the indeterminancy and vagueness of international law, like all 
law it has areas of clarity and areas of uncertainty. No lawyer familiar 
with national law harbors illusions as to its definiteness in all areas. 
International law may have more gaps and tears in the legal fabric but it 
is not fundamentally different. The real villain here is that the 
non-specialist in any field can easily equate adversary argument with 
indeterminancy. Because doctors, economists or lawyers disagree does 
not mean there is no medicine, economics or law. And the problem is 
compounded with law since "legality" or compliance with "authorita- 
tive expectation" is a source of power and as a result those on different 
sides of an issue are highly likely to make opposing legal arguments. But 
rather than indicating the futility of law such argument in fact 
demonstrates that "authoritative expectations" are taken sufficiently 
seriously as a source of power as to themselves be fought over. 

The notion that states alone of all man's institutions should escape 
moral or legal judgment is baffling. Given a sympathetic interpretation, 
what may have been meant by George Kennan and others is that in 
those extreme situations where national survival is at stake we would 
predict that nations will give little weight to contrary considerations of 
international law. Though this may be an accurate empirical judgment, 
it still neither serves to avoid moral or legal judgment, nor accurately 
point out that costs for legal violation may still be incurred. 

Finally, I and the writers in this volume have a tougher time with the 
observation that international law frequently is not significantly 
considered in key national security decisions. Unfortunately, this is too 
true no matter how many volumes are published on the role of law in 
national security decisions. There continues to be no international legal 
expert as such on the NSC staff and the State Department Legal 
Advisor may or may not become involved in key crisis. Frequently, 



Xll 



Congress seems to have even less regard for international law. The flaw 
in the argument, however, is to equate what is with what is desirable. It 
is easily demonstrable that when we have not taken international law 
into account we have sometimes paid significantly unnecessary costs. 
And in the instances (more than just a few) where there has been a 
significant international legal input (as in the Cuban Missile Crisis 
"quarantine" as opposed to "blockade") the actions have benefited. In 
the years ahead we as a Nation are going to need to find more effective 
ways to systematically include an international legal perspective in 
national security decisions. I am confident that we can and will. 

The misperceptions of the extreme "legalists" are as set out largely 
self-explanatory. One point, though, deserves elaboration. It is an 
obvious sophistry to argue that just because something is in the national 
interest (or has just been done) that it is lawful. Similarly, we would 
not be impressed with an argument that just because a policy option is 
not in the national interest that it is illegal. The converse does not 
automatically follow either and I believe that international lawyers 
sometimes do adherence to law a disservice by implying that it does. 
That is, by either assuming that because something is lawful it is in the 
national interest or that a course of action is not in the national interest 
because it is unlawful. As is by now evident I strongly believe in the 
importance and utility of international law for national security 
decision makers. Naval or Coast Guard planners unaware of the law of 
the sea or the law of war would be poor planners. And as the Vigilant 
incident demonstrates if they are unaware of significant United States 
treaty obligations their career as planners may be short. Indeed, 
international law is so important that I can think of no real example 
where clear illegality should not be sufficient alone to have caused me 
to recommend against the action. I believe that international lawyers 
will be more effective, however, if in those settings they explain to 
national decision makers why it is important for our Nation to adhere 
to international law and what costs the Nation would bear for 
violation. 2 

As a final comment on the role of law, the Navy Regulations point 
the way and for the Naval Officer spell out clearly that international 
law will be followed. Commander Carlisle of the Navy Judge Advocate 
General's Office reminded his audience in 1953 that Section 0505 of 
Navy Regulations 3 reads: 

In the event of war between nations with which the United States 
is at peace, a commander shall observe, and require his command 
to observe, the principles of international law . . [and] when the 
United States is at war he shall observe and require his command 
to observe, the principles of international law .... 



For a fuller exposition of this point see Moore, "Comment on Professor 
Farer's Need for a Thesis: A Reply," in Law and Civil War in the Modern World, 
565, 570-572 (J.N. Moore, ed. 1974). 

3 Under the 1973 Regulations, it is Section 0605 which reads: "At all times a 
commander shall observe, and require his command to observe, the principles of 
international law. Where necessary to fulfillment of this responsibility, a 
departure from other provisions of Navy Regulations is authorized." 



Xlll 



And further that Section 1214 4 states: "All persons in the naval 
service, in their relations with foreign nations, and with the 
governments or agents thereof, shall conform to international 
law. . . ." 5 There is nothing nebulous about that reality! In fact it 
illustrates one of the most important ways in which international law is 
realized and receives sanction, that is through incorporation into 
national law. But as Part I of this volume shows, even without the Navy 
Regulations there are strong reasons why international law must be 
taken into account. 

An Evolving Ocean Law 

It is only fitting that one of the subjects to receive greatest attention 
in the Naval War College Review has been the law of the sea. The 
writings reprinted in this volume cover nearly every aspect of ocean law. 
They are particularly interesting both for the timeless classics among 
them, such as the two McDougal articles or the Lissitzyn piece on the 
Pueblo incident, and because together they chronicle United States 
ocean policy through one of the most important and rapid evolutions in 
the history of ocean law. Articles included span the First and Second 
United Nations Conferences on Law of the Sea in 1958 and 1960 
through the early days of the "Seabeds Committee," and down to the 
current sessions of the on-going Third United Nations Conference on 
the Law of the Sea (UNCLOS III). These last ten years, encompassing 
the work of the Conference to date, and the period of rapid 200-mile 
claims following the United States 200 mile fishery claim in 1977, have 
seen a virtual revolution in ocean law. 

In 1960, following the unsuccessful conclusion of UNCLOS II, the 
three mile limit was still widely recognized as the maximum breadth of 
the territorial sea and it was disputed whether fisheries jurisdiction 
could be extended to twelve nautical miles. Transit through straits was 
not yet a hot issue; the Soviets were still primarily coastal in their 
orientation to oceans policy and manganese nodules were just an entry 
in the log of H.M.S. Challenger. 

Today, less than twenty years later, the face of oceans law is 
radically different. More nations now recognize a twelve mile maximum 
breadth of the territorial sea, but in compensation there is broad 
agreement within UNCLOS III, embodied in the negotiating text of the 
Conference, that twelve is indeed the maximum permissible limit and 
that there is an unambiguous right of transit passage through, over, and 
under straits used for international navigation. This latter right is 
recognition for the first time in the history of ocean law that the right 



Section 1214 has been replaced by Section 1124 of the 1973 Regulations, 
which reads in pertinent part: "Persons in the Department of the Navy, in their 
relations with foreign nations, and with the governments or agents thereof, shall 
conform to international law and to the precedents established by the United 
States in such relations." 

Carlisle, "Aspects of International Law Affecting the Naval Commander," at 
page 157 of this volume. 



XIV 



of transit through straits used for international navigation is different 
from and calls for greater protection than the regime of innocent 
passage in the territorial sea. In a logical extension of the same point 
the Conference has also tentatively recognized a right of mid-ocean 
archipelagoes but with the same transit rights of archipelagic passage 
through broad sealanes. At the same time the archipelagic doctrine has 
been limited to certain mid-ocean archipelagoes objectively defined by 
land-to-water ratios and maximum length of closing lines. The 
controversy over the 12 mile fishing zone has abated and in fact over 60 
nations now claim at least fishery jurisdiction out to 200 miles over 
coastal species of fish. The United States itself led the way with the 
Magnuson Fishery Conservation Act of 1976, taking effect in March 
1977. And the Informal Composite Negotiating Text of the Law of the 
Sea Conference recognizes a 200-mile economic zone in which coastal 
nations would have control of resources within a 200-mile area but 
simultaneously the complete high seas freedom of navigation overflight 
and other high seas uses traditionally recognized by international law 
would be retained in the area by the international community. The 
Soviets, who were so coastally preoccupied in 1960, have emerged as one 
of the major oceans powers on a global basis and not surprisingly their 
oceans policy has shifted accordingly. The major debates of the day are 
the extent of coastal state powers over marine scientific research and 
vessel-source pollution out to 200 miles and the regime for deep seabed 
mining in areas beyond national jurisdiction. This last issue, that of 
deep seabed mining, has now stalemated UNCLOS III for three sessions 
over two years. On the one hand, the Group of 77 developing countries 
has sought a powerful International Authority with an operating 
Enterprise to mine the deep seabed on behalf of the international 
community. They have indicated a willingness to permit individual 
nations or business entities sponsored by them to participate in joint 
ventures under tight controls until technology has been adequately 
transferred to the Enterprise. On the other hand, the developed nations, 
led by the United States, have insisted on a right of assured access to 
deep seabed minerals although they have reluctantly indicated willing- 
ness to accept a parallel system that would permit an international 
Enterprise on half of the seabed sites. At this writing the stalemate 
continues. In the meantime, the United States Congress is moving 
forward with legislation to regulate mining by United States firms. How 
this deep seabed issue is resolved over the next several years could have 
profound effects on whether a comprehensive treaty can be concluded 
and ultimately on the parameters of ocean law going well beyond the 
seabed issue alone. 

For persons interested in the evolution of United States ocean policy 
over this crucial period the writings in this volume provide one of the 
best public records anywhere. The article by Captain John Brock on 
archipelagoes is still a classic. His strong emphasis on freedom of transit 
through archipelagic waters was a corner-stone of United States policy 
toward archipelagic claims during the course of UNCLOS III negotia- 
tions. Happily for both archipelagic nations and maritime nations, a 
compromise was worked out that recognizes certain mid-ocean archi- 
pelagoes but fully protects essential transit rights through archipelagic 



XV 



waters. Similarly, the articles by Rear Admiral Joseph McDevitt, Robert 
Frosch, Captain Horace Robertson (who as a Rear Admiral subse- 
quently served a distinguished stint as the Joint Chiefs (OJCS) 
representative for the Law of the Sea), and Colonel John Lewis set out 
clearly the options then being considered with respect to the deep 
seabed regime. Though they indicate a strong (and properly so) concern 
to avoid progressive extension of coastal state jurisdiction affecting 
navigational freedom, nowhere is there any basis for the often repeated 
(and I believe erroneous) charge of a trade-off of United States mining 
interests for naval interests in transit of straits. Indeed, a simple 
international registry system coupled with a flag state approach seems 
to rank high on their list of desirable options. For example Rear 
Admiral McDevitt wrote in 1968 after surveying options then being 
considered: 

. . . Some form of international registry of claims in conjunction 
with a system of flag state jurisdiction and control deserves 
serious consideration. From the national security standpoint, 
such a system might even be advantageous for it might tend to 
reduce the risk of economic conflict or territorial claims and, at 
the same time, not materially interfere with or constrain 
peacetime military activities and deployments. 6 
Interestingly, this was also the approach recommended by the National 
Advisory Committee on Oceans and Atmosphere (NACOA) and the 
Senate Interior Committee. Had the United States begun the seabed 
negotiation closer to this recommendation the results might have been 
quite different, even though it is likely that any final agreement would 
have gone beyond this suggestion. Another indication of something 
wrong in our early seabed position is suggested in the article by 
Lieutenant Mark Janis on "The Soviet Navy and Oceans Law." Janis 
points out that three years after the elaborate 1970 United States 
seabed proposal, Admiral Gorshkov, the Soviet Naval strategist, was 
writing in opposition to a strong international authority for the deep 
seabeds. 7 Had the United States begun the seabeds negotiation with a 
fairly conservative registry proposal and worked with the Soviet Union 
to keep the deep seabed negotiation within bounds the final compro- 
mise might have been easier and more to our liking. 

One message emerges as centrally important for United States ocean 
policy. The United States is today and has been for some years the 
most influential nation in the World in setting the legal regime for the 
oceans. What we do and say, our successes and our failures, will be 
multiplied many fold. Such a potential for influence calls for a unified 
foreign policy for the oceans and consistent high level consideration of 
ocean issues. We must take ocean policy seriously and we must firmly 
adhere to a vision that will both protect our own interests and promote 
the common interest. I believe that some of the enduring principles of 
such a policy as they affect security are as follows: 



McDevitt, "New Issues and New Interest in the Law of the Sea," at page 250 
of this volume, 

•n 

Janis, "The Soviet Navy and Ocean Law," at page 609 of this volume. 



XVI 



— we should continue to encourage development of ocean law 
along functional lines. The movement from a single territorial sea 
limit for all ocean purposes to multiple limits with full protection 
for navigational freedom and reasonable coastal state resource 
rights is a fundamentally important development in ocean law; 
— we should continue to encourage development of ocean law 
through international agreement rather than unilateral claim. 
Illegal unilateral claims encourage every nation to make claims 
supportive only of their own interests. In such a scenario nations 
with ocean interests on a global basis, such as the United States, 
and ultimately mankind as a whole, will be losers. Moreover, a 
pattern of ocean law development through claim and counter- 
claim is less productive of a stable ocean investment climate and 
more prone to conflict; 

— we should ourselves scrupulously avoid illegal unilateral ocean 
claims; 

— we should continue to insist on freedom of navigation as a 
cardinal tenet of United States ocean policy including: 

-an objective and liberal regime of innocent passage in the 
territorial sea; 

-a maximum breadth of the territorial sea of twelve nautical 
miles (this is not to suggest we should adopt a twelve mile 
limit, at least not in the absence of a comprehensive law of the 
sea treaty guaranteeing transit of straits); 
-transit passage through, over, and under straits used for 
international navigation and broad archipelagic sealanes; 
-with the exception of specific coastal state resource rights, 
complete high seas freedom including navigation and overflight 
beyond a twelve nautical mile maximum territorial sea as well 
as within any "fishery" or "economic zone"; 
-no coastal state standard-setting rights for vessel-source 
pollution within either straits, archipelagic sealanes or areas of 
coastal state resource jurisdiction. Rather standards should be 
set through the Intergovernmental Maritime Consultative 
Organization (IMCO); 

-no greater navigational restrictions in the Arctic Ocean and 
enclosed and semi-enclosed seas than in other ocean areas 
(with the exception of the Arctic environment compromise for 
"ice-covered areas" contained in Article 235 and the dispute 
settlement text of the ICNT); and 

-no arms or "zone of peace" limitations that in any way 

prohibit naval presence for nonlittoral nations as a matter of 

general ocean law. (This would not prevent selected bilateral 

obligations with other naval powers if considered desirable); 

— we should continue to support efforts to encourage and 

facilitate third party mechanisms for peaceful resolution of ocean 

disputes; and 

— we should continue to insist that the international regime for 

the area beyond national jurisdiction be confined to seabed 

mining and resource jurisdiction only. 

Fortunately, with the possible exception of the last of these principles, 

this is as provided by the Informal Composite Negotiating Text of the 



XV11 



Law of the Sea Conference. If a comprehensive treaty can be concluded 
with these provisions so much the better. If not, then the challenge will 
be to shape ocean law on these subjects as it would be if the ICNT were 
a governing treaty. 8 In the meantime, the Executive branch and 
Congress must coordinate all ocean law proposals. 

Ocean policy is an important part of national security planning. It is 
essential that we recognize that importance and act firmly and 
consistently to promote a viable legal order of the oceans. The writings 
on ocean law and policy in this volume are a valuable contribution in 
that goal. 

Introduction to Volume II 

An introduction to the conflict management, human rights and 
miscellaneous materials in these volumes appears as an introduction by 
Professor Richard B. Lillich to Volume II. 



John Norton Moore 
Charlottesville, Virginia 
March 1979 



In my judgment the present ICNT is not acceptable, however, with respect to 
deep seabed mining, marine scientific research, the balance of rights in the 
economic zone reflected in articles 56 and 58, the treatment of whales in article 
65, and in several other respects. 



INTRODUCTION TO INTERNATIONAL LAW 



R.R. Baxter 



International law suffers both from 
its friends and its enemies. Its enemies 
include the geopoliticians, who hear 
nothing but the surge and crash of great 
international forces; the Kennanites, 
who rebel against a "legalistic" ap- 
proach to international affairs; and the 
specialists in international relations, 
who, not knowing very much about the 
subject, lump international law, as con- 
ceived by Hugo Grotius, with the 
League of Nations, the United Nations, 
and the control of the white slave trade. 
The similarity between some of the 
friends of international law and most of 
its enemies is that they overstate the 
pretended case for international law. It 
is then all too easy to demonstrate that, 
despite the claims made for interna- 
tional law, the world is still in a de- 
plorable state. The truth lies somewhere 
between the contentions of those who 
find no place for international law in 
the savage world of interstate relations 
and those who believe that the millen- 
ium can be achieved with a heavy 
infusion of international law and good 
will. What is the correct view must be 
left to each of you to determine at the 
end of this brief introductory course. 



It is quite clear that man has not 
been able to legislate war and aggression 
into defeat or even into retreat, al- 
though the institutions which the inter- 
national community has developed exer- 
cise some restraints on the use of force. 
Customary law cannot cope adequately 
with the need for peaceful change. If a 
nation needs more territory or larger 
markets, the law cannot provide them. 
It cannot make an unhappy people 
happy; it cannot turn arid desert into a 
flowering paradise; it cannot bring inter- 
national tranquility and understanding 
where discord reigned before. Indeed, it 
might be safe to say that international 
law has been most successful in dealing 
with minor matters and with the slighter 
causes of international friction. 
Probably it shows a greater facility in 
preserving the status quo than in doing 
justice. 

Within these severe limitations, inter- 
national law does play an important 
part in minimizing possible sources of 
international friction and in making it 
possible for nations and their people to 
live together peacefully in an increas- 
ingly crowded world. This is not to say 
that it is the only force making for these 



conditions. Merchants do not perform 
their contracts only because the law 
grants a remedy against them if they do 
not. The Uniform Code of Military 
Justice and the law of the State of 
Rhode Island are not the only restraints 
which keep you from resorting to physi- 
cal violence against those you dislike or 
with whom you disagree. So also in the 
international sphere, enlightened self- 
interest, certain consideration of 
morality, the desire for stability, and 
the fear of retaliation work with the 
precepts of international law to main- 
tain international order. Actually, it is 
impossible to separate international law 
from these other forces, for the law 
which governs the relationships of 
States has its origins in self-interest, 
morality, the quest for stability, and the 
fear of the consequences of conduct 
departing from international standard-. 

International law— or the law of na- 
tions, as it is sometimes called— per- 
forms two major services. The first of 
these is to insure stability. The second is 
the creation of arrangements for future 
avoidance of conflict and dispute, 

I must speak first of the laws func- 
tion in the preservation of stable inter- 
national relationships, for this is the 
principal eoncem of the customary law 
whieh has grown up over the course of 
the centuries. One of the greatest legal 
thinkers of our age, Hans Kelsen. who 
served for a year as Professor of Interna- 
tional Law here at the War College, has 
written a book on the "General Theor\ 
of Law and State." He speaks in page 
alter page of a "basic norm" upon 
which all international law and all na- 
tional legal systems depend. One waits 
anxiousl) for this key to the legal 
universe as one reads through several 
hundred pages of profound and not 
altogether eas\ prose. Finally, on page 
369, one finds the basic principle upon 
which all else depends— "The States 
ought to behave as they have custom- 
arily behaved." At first reading this 
statement sounds didactic, unhelpful. 



perhaps even foolish. It is certainly 
anticlimatic. But a little thought will, I 
think, persuade you that this is a useful 
key to international law. But why, in a 
dynamic universe, should we behave as 
we have in the past? We do so because if 
we allow our conduct to fall into certain 
patterns, we avoid some of the clashes 
between States which would arise if 
each point of contact presented a fresh 
issue to be fought out. If persons having 
to pass through a farmer's field keep to 
the path and if the farmer refrains from 
planting his crops in that path, there 
will be scant possibility of any dispute 
between pedestrians and the farmer. If 
people constantl) take different paths 
across the field and the farmer block- 
oil various path>. had feelings and even 
violence can he anticipated. Other rea- 
sons as well dictate that we should act 
within the legal limits which have grown 
up through force of custom in the past 
If we react differently in different in- 
stances of the Bame factual situation, 
our conduct becomes inconsistent and 
irrational. Plain laziness ma\ be another 
reason wh) we Bhould continue to act as 

WC have acted before. 11 a conflict ot 

interests in the past was solved only 
with much pain and difficulty, then 1 i> 
no reason why the battle should be 
refought each time the Identical conflict 

of interest arises. 

This psychological explanation of 
why we find it expedient to conform to 
the pattern of rights and duties prcvi- 
OUsl) established leaves unanswered the 
question how these rights and duties 
arose in the first place. Some o! them 
are based on principles of justice not 
unlike those underlying the laws of 
various countries. The responsibility a 
State lias for the injur) which one ot it- 

employees inflicts on an alien, for ex- 
ample h\ taking his property without 
compensation, is a reflection ot what 
most systems o( law have considered to 
be just dialing over the course of the 
years. In Other instances, the role oi 

justice is somewhat les> clear. There ii 



no great principle of right dealing which 
calls for a territorial sea of three miles 
instead of two or four. Historically, the 
limit was more or less arbitrarily estab- 
lished and was not even, as many people 
think it was, equivalent to the range of 
cannon in the eighteenth century. An 
international boundary is not, except in 
terms of politics, "just" or "unjust"; it 
simply is. The respect which the law 
demands for the distinction between 
what is mine and what is thine, how- 
ever, can be said to reflect just dealing. 
A third area of international law is the 
result of the adoption of policies for the 
regulation of international intercourse. 
Of this nature are the immunities en- 
joyed by diplomats and consuls. Justice 
might demand that if an ambassador 
were introducing narcotics into the 
State to which he was accredited in 
violation of its law, he should be prose- 
cuted in the courts of that State. But it 
is considered that the conduct of inter- 
national relations will be facilitated by 
giving the ambassador complete free- 
dom from suit. Any other rule might 
make it difficult for him to carry out his 
representative functions. 

I spoke several minutes ago of the 
second role of international law as being 
the framing of institutions and arrange- 
ments which will permit nations, in 
their relations with other States, with 
international organizations, and with 
aliens, to avoid conflict and to create 
the conditions under which political and 
social and economic security can be 
achieved. It might be more correct to 
speak of this as a role of the interna- 
tional lawyer, for this is essentially a 
creative function. Those charged with 
the making of a new law must also 
know what principles, rules, organiza- 
tional forms and controls have worked 
in the past, for, as Santayana has re- 
minded us, those who forget the past 
are condemned to relive it. This is no 
more than to say that the lawyer or 
layman who is drafting a treaty should 
have a grounding in customary interna- 



tional law. Amongst the problems with 
which we will deal in seminars during 
the next ten days, you will recognize 
some problems which ask you to declare 
what the proper result would be under 
the existing law and others in which you 
are asked to think creatively about what 
should be the future of the law. 

In what I have to say about the 
origins and purposes of international 
law, I do not mean to underestimate the 
importance of international politics— of 
power politics. Statesmen and lawyers 
from the Latin American States not 
infrequently complain that the princi- 
ples of responsibility for injuries to the 
persons and property of aliens which 
can be derived from the numerous cases 
decided by arbitral tribunals reflect the 
fact that marines and gunboats made it 
possible for the United States to force 
arbitration of these cases on terms 
favorable to the United States. The 
most recent example we have had of the 
way in which politics molds interna- 
tional law was in the Geneva Conference 
on the Law of the Sea. As to each 
proposal made at the Conference, the 
question of each State was: How will 
this affect my political and economic 
interests? Saudi Arabia and Israel were 
worried about how the provisions on 
bays and on passage through straits 
would affect Aqaba and the Straits of 
Tiran. The CEP Powers— Chile, Ecuador, 
and Peru— were concerned with the 
maintenance of a 200-mile territorial 
sea. Iceland wondered how the fishing 
grounds of its coast would be affected. 
Panama wished to protect its position as 
a refuge for shipping seeking a minimum 
of regulation. Failure to agree on the 
breadth of the territorial sea, admittedly 
a most important matter, should not 
obscure the fact that, in spite of these 
political differences, some sound con- 
ventions were hammered out. As you 
read these, I think you will be per- 
suaded that they represent a sound and 
just balancing of interests and that 
they should and will be adopted by 



a substantial number of States. 

A healthy political realism is use- 
ful. It should not lead you to cyni- 
cism. States do conform to interna- 
tional law even though abiding by the 
law in a particular case may cost them 
money or be adverse to their interests. 
The record of compliance with the 
judgments of international tribunals is 
excellent. States do pay international 
claims arising out of violations of inter- 
national law committed by their 
officials, members of their armed forces, 
and their employees. The United States, 
for example, has paid for the foreign 
vessels which it requisitioned, consis- 
tently with international law, during the 
Second World War. Egypt has paid full 
compensation for the nationalization of 
the Suez Canal, as international law 
probably required it to do. Each time 
that a State acts in accordance with 
international law, it makes it easier for 
that State to demand conformity with 
international law bv other States. 

j 

The durability of law is attested by 
the fact that it survives even in time of 
war, when the belligerents have cast off 
those restraints which normally keep 
them at peace. There is virtually no law 
governing the conduct of hostilities 
themselves, but as we move further 
from the scene of battle and conditions 
become somewhat more stabilized the 
law increasingly becomes able to per- 
form its humanitarian mission of pro- 
tecting the victims of war from unneces- 
sary devastation and suffering. Even the 
total war of today does not require the 
extermination of the part of the civilian 
population that does not take part in 
hostilities; the wounded and sick, and 
prisoners of war, the protection of 
whom is not only compatible with the 
efficient conduct of hostilities but also 
is conducive to victory in the political 
struggle of which the use of force is 
only one aspect. A large part of the law 
of the sea is devoted to striking a 
balance between the demand of the 
belligerents to carry on their economic 



blockade and the need of the neutrals to 
maintain their trade. The important 
changes wrought in the law relating to 
contraband and blockade as the result 
of two World Wars will be considered in 
some detail in connection with the 
seminar problems on the economic 
blockade, which are designed to draw 
attention to the new developments in 
this field. Over and above these two 
functions of regulating the conduct of 
the belligerents toward the victims of 
war and neutral nations and their trade, 
the law of war, in dealing with such 
subjects as armistices and surrenders and 
negotiations between belligerents, pro- 
vides procedures for bringing hostilities 
to a close short of total annihilation of 
one or both of the contending parties. I 
assume that those of you who may have 
some mental reservations about a battle 
fought between two scorpions in a 
bottle may not be unsympathetic to 
these purposes of the law of war. The 
law of war has been violated often, but, 
every instance in which it has been 
observed, it has brought about a mitiga- 
tion of violence, often measurable in 
terms of human lives saved, and this 
without prejudice to the efficient con- 
duct of war. 

To many, lawyers and nonlawyers 
alike, it seems incredible that a body of 
rules purporting to govern the conduct 
of nations but providing no sanctions or 
punishment for their violation should be 
called law at all. It is not altogether fair 
to speak of international law as a 
sanctionless body of law, for the great 
numbers of cases in which damages have 
been awarded and paid and in which 
individuals have been punished for 
criminal violations of the law of nations 
bear witness to the contrary. The single 
category of cases in which civil damages 
most commonly have been granted are 
those arising out of wrongs done by 
States to aliens. Criminal penalties, leav- 
ing aside such exceptional offenses as 
piracy, have been reserved for violations 
of the law of war, which resemble the 



normal crimes punishable under na- 
tional legal systems to such a degree 
that some countries even have tried war 
criminals under their ordinary penal 
codes. Yet a third type of satisfaction 
exists in international law— the apology 
or rendering of honors or other admis- 
sion of violation of the law. One should 
not scoff at these symbolic acts. They 
constitute outward and visible signs of 
what should be the correct relationships 
between the parties and the proper 
principle of law to be applied in the 
future. 

But, you justifiably object, what 
force is there to compel a State to pay 
the damages which have been assessed 
against it, or to render up its nationals 
for trial by a foreign court, or to admit 
the impropriety or illegality of its con- 
duct in a particular case? Admittedly, 
there is no international sheriff armed 
with power to see that judgments are 
enforced or that the parties appear 
before an international tribunal in the 
first place. But it is easy to overempha- 
size the importance of the sanction. A 
superior court has no forceful means at 
its disposal to compel obedience to its 
mandate by a subordinate court. If a 
court directs a command to the execu- 
tive which goes unheeded, what means 
has it of compelling that obedience? 
You may remember the words attri- 
buted to President Jackson: "Well, John 
Marshall has made his decision, now let 
him enforce it!" A comparative statis- 
tical analysis of the number of divisions 
available to the Pope and to the United 
States Supreme Court would not be 
difficult to make. And if a hillbilly 
called to high political office voices 
contempt for the law of the land and 
allows the mob to rule within his 
jurisdiction, can the sanction of employ- 
ing loyal troops solve this problem of 
subversion? Sanctions, as we commonly 
think of them, seem to belong to the 
normal day-to-day enforcement of the 
law. The great edifice of our constitu- 
tional system is held together not by the 



fear of duress if the law be violated, but 
by a common devotion and loyalty to 
the law by those charged with its 
making and its application. 

Moreover, as I mentioned some 
minutes ago, it is not the law alone, in 
the form of a fear of criminal penalty or 
of civil damages, which secures compli- 
ance with law. Morality, taboos, social 
pressure, the views of the community, 
and religion are among the forces allied 
with the threat of penalty or damages in 
securing compliance with law. 

It thus would appear that the sanc- 
tion behind the sanction in national law 
is the sense of the community that it 
should be governed by the rule of law. 
It is that basic sanction which is lacking 
very largely in the international sphere. 
It is not absent altogether, however, for, 
if it were, the world would be in a state 
of anarchy. The extent of the convic- 
tion in favor of subjection to law varies 
from country to country, from interna- 
tional relationship to international rela- 
tionship, from legal principle to legal 
principle, and from case to case. With 
many countries of the world, the United 
States has a vast network of agreements, 
which are carried out on a routine basis, 
although differences of views as to 
interpretation may arise from time to 
time. The United States can carry on 
discussions with Great Britain or France 
or Switzerland or Japan in terms of 
international law, and both parties can 
make themselves understood. We— and I 
speak here of a responsibility all 
Americans bear through our senators- 
are, on the other hand, unwilling to 
concede to the International Court of 
Justice compulsory jurisdiction over dis- 
putes with those States with which we 
have the closest affinities of law, tradi- 
tion, interest, and security. In their 
public pronouncements, our principal 
ministers are dedicated fiercely to the 
rule of law and in steadfast opposition 
to international sin. In its actual con- 
duct in particular cases, this country 
frequently shows itself as zealous to 



preserve its sovereignty— which is a 
polite way of saying being a law unto 
itself— as other major powers. 

In the present state of international 
law, it is not surprising that the law 
should not be interpreted uniformly, 
even in theoretical terms, throughout 
the world. Legal rules sometimes exist 
on a regional basis. A clear example is 
the principle regarding political asylum 
in embassies which prevails in Latin 
America but only to a very limited 
extent elsewhere. More obvious to the 
eye is the peculiar nature of Soviet 
international law. This cannot be ex- 
plained solely in terms of Marxist 
theory. The Soviet view of international 
law is without doubt a servant of the 
policy of the U.S.S.R., and, as such, it 
serves a most important defensive func- 
tion. If you were to compare the inter- 
national law of modern Russia with that 
which prevailed in the rest of the world 
in the late eighteenth and early nine- 
teenth centuries, I think you would be 
struck by the similarity. Soviet interna- 
tional law is strongly isolationist and 
places great emphasis on State sover- 
eignty; that is, on freedom from inter- 
ference by other States. This shield 
against legal controls permits the 
U.S.S.R. to carry out its policies 
through internal subversion and through 
political pressures, while international 
law is used to ward off legal attacks on 
the U.S.S.R. and the nation within 
which the subversion is being practiced. 
There are other aspects of Russia's 
attitude toward international law which 
stem from the history of Russia and 
would remain unchanged if the U.S.S.R. 
were to join the Free World tomorrow. 
For example, one of the cardinal princi- 
ples of Soviet foreign policy has always 
been to maintain the Black Sea as a 
private swimming club, with outsiders 
barred at the Turkish Straits. If the 
Russians are difficult about this point, it 
is not the corrupting influence of Com- 
munism which has made them so. 

This is not the time nor am I the 



person to speculate about the way in 
which the world may be made subject 
to the rule of law. Some suggest that the 
creation of a true world law, binding on 
all States and enforced against them, 
must await the creation of a world 
government. An important blueprint for 
the centralization of some governmental 
functions on the international plane has 
recently been made in a study by Mr. 
Grenville Clark and Professor Louis 
Sohn. There are others who maintain 
that in the past law has been necessary 
before the State or a government could 
be created. According to this view, we 
must promote the observance of law 
between States before we can hope to 
see any form of international govern- 
ment. Perhaps the correct view is that 
government and law, inextricably re- 
lated as they are, must march together. 
Having spoken of the origin and 
force of international law, I now must 
turn to some description of interna- 
tional law as it exists today, with 
particular emphasis upon the sources of 
international law. There is some criti- 
cism, I might add, of the term "inter- 
national law" itself, for it is complained 
that the body of law with which we 
must concern ourselves in these days is a 
larger one "which regulates actions or 
events which transcend national fron- 
tiers." Professor Jessup, whose descrip- 
tion this is, and a number of other 
authorities prefer to employ the term 
"transnational law." Historically, inter- 
national law has been said to be that 
body of law which governs the relation- 
ships of States. Nevertheless, the impact 
of the law of nations always has been 
felt by individuals. If Nation A owes 
Nation B a duty to protect the latter 'a 
citizens when they are in the territory 
of State A, the duty may be owed to 
Nation B, but it is the national of State 
B who is protected or injured, as the 
case may be. If one State owes another 
nation a duty not to subject the soldiers 
of the latter to the jurisdiction of its 
courts for line-of-duty offenses in time 



of war, it is the individual soldier or 
sailor who ultimately benefits from that 
immunity. But the International Court 
of Justice as well as many international 
lawyers continue to pay lip service to 
the old view when they say that a State 
bringing a claim against another for an 
injury to its national does so because of 
an injury to its interests, not because of 
the injury to the alien. In our day, when 
international relationships have grown 
more complex and States have to deal 
with other nations, with foreign corpo- 
rations, with alien individuals, with 
public international organizations, with 
private international organizations (like 
the International Committee of the Red 
Cross or the International Air Transport 
Association), it is probably more correct 
to say that international law governs the 
relationship of a State or public interna- 
tional organization with some person or 
body of persons or entity foreign to it. 
The law in this area is still in the process 
of formation. Only a few years ago, the 
International Court of Justice was able 
to conclude that the United Nations had 
international standing to present a claim 
arising out of the death of Count 
Bernadotte, the United Nations Medi- 
ator in Palestine. The Court noted that 
the organization was endowed suf- 
ficiently with the characteristics of 
international personality that it had 
been able to conclude agreements on 
the international plane in the past. 

The sources of international law are 
described conveniently for us in Article 
38 of the Statutes of the International 
Court of Justice, which deals with the 
law to be applied by that tribunal. I will 
have a few words to say about each of 
these and some related observations 
about where to find the law. The first of 
these sources of law is "international 
conventions, whether general or particu- 
lar, establishing rules expressly recog- 
nized by the contesting states," by 
which is meant treaties to which the 
litigating States are parties. Treaties may 
be bilateral, binding on two States, or 



multilateral, if three or more States are 
parties. The term "international legisla- 
tion" is sometimes used to describe "the 
process and the product of the consci- 
ous effort to make addition to, or 
changes in, the law of nations," the 
definition being that of Judge Hudson, 
who has edited a notable collection of 
such treaties. International legislation, 
as thus conceived, must be distinguished 
from the laws adopted by national 
legislatures. It is of the essence of 
national legislation, whether enacted by 
a direct vote, as in a town meeting, or 
through representatives of the people, 
that a properly enacted statute or reso- 
lution or ordinance should bind even 
those who were opposed to its adop- 
tion. The situation is quite different 
with respect to treaties, for, with rare 
exceptions, they bind only those who 
have consented to become parties to the 
agreement. In this respect, they are 
more like contracts than like statutes. I 
said "with exceptions" because some 
provisions of the United Nations Char- 
ter, to take one example, purport to 
govern the conduct of nonmembers of 
the organization. In other instances, 
conventions— a term often applied to 
multilateral treaties— have been drawn 
up which declare that they are declara- 
tory of customary international law so 
that we may look to them as evidence 
of the customary law binding on non- 
parties to the conventions. A number of 
the defendants in the German war 
crimes trials maintained that since the 
Regulations annexed to Convention No. 
IV of The Hague of 1907 were not in 
force between the parties to the con- 
flict, the criminality of their conduct 
could not be adjudged in terms of those 
Regulations. To this contention, the 
tribunals replied that the Hague Regula- 
tions and certain provisions of the 
Geneva Prisoners of War Convention of 
1929 as well were declaratory of cus- 
tomary international law and it there- 
fore was possible to look to them as the 
best statement of customary law. 



8 



In order to determine the meaning of a 
provision of a treaty, it is often necessary 
to have reference to the drafting history 
or travaux preparatoires of the agree- 
ment. In the case of a multilateral con- 
vention, this will include the debates in 
the conference which drafted the treaty, 
the proceedings of the various commis- 
sions of the conference, and the reports 
prepared by the commissions and the 
conference. The International Court of 
Justice has shown itself reluctant to rely 
on the drafting history of an agreement in 
order to ascertain its meaning, but it has 
turned to the travaux preparatoires in 
order to support the conclusion it already 
has reached. 

The second source of international 
law mentioned in Article 38 of the 
Statute of the Court is "international 
custom, as evidence of a general practice 
accepted as law." The evidence of inter- 
national custom is to be sought primarily 
in State practice. It has often been said in 
the past that the conduct of a State 
cannot be creative of law genuinely 
unless it be undertaken because the State 
believed this course of action was the 
proper or obligatory one. I think that it is 
safer to say that State practice, without 
regard to its motives or intent, creates 
customary law, provided it be acquiesced 
in by other nations and is not regarded as 
improper. It is in order to prevent the 
hardening of a country's claims into law 
that other States make protests, as, for 
example, against the claim to a territorial 
sea of 200 miles or to the sudden closing 
of a bay on the asserted grounds that it is 
a historic bay constituting national 
waters of the claimant. The claim of 
Norway to a territorial sea of four miles 
drawn from straight base lines was recog- 
nized by the International Court of 
Justice because of the fact that Norway 
long had asserted its right to those waters 
and other States had acquiesced in this 
claim. It is this translation of practice 
into customary law to which I referred 
earlier when I spoke of the law's search 
for stability through adherence to a 



pattern of conduct established in the 
past. 

We search for evidence of interna- 
tional custom in diplomatic history, in 
collections of diplomatic documents, 
and in the writings of scholars who have 
written on these matters. In the case of 
the United States, the great source 
record of our diplomatic history is the 
series Foreign Relations of the United 
States, in which the important diplo- 
matic correspondence of this country is 
printed. Publication of this record fol- 
lows about fifteen years after the events 
recorded. The practice of the United 
States and of many other countries is 
found more conveniently in Hack- 
worth's Digest of International Law, the 
eight volumes of which are one of the 
most important sources for anyone in- 
terested in international law. 

The third source mentioned is "the 
general principles of law recognized by 
civilized nations." This provision makes 
national legal systems a source of law 
for the creation of international law, 
especially in those cases where there are 
as yet no applicable principles of the 
law of nations. Unjust enrichment and 
respect for acquired rights have been 
said to be two of the principles carried 
over from municipal law— as interna- 
tional lawyers confusingly call national 
law— into the law of nations. 

The fourth subparagraph of Article 
38 of the Charter lists two final sources. 
The first of these is "judicial decisions." 
The most important of these are the 
judgments of the Permanent Court of 
International Justice, renamed the Inter- 
national Court of Justice at the time of 
the adoption of the Charter just to show 
people that the Court had never had 
anything to do with the League. These 
are printed in collections of judgments 
of the Court. The decisions of arbitral 
tribunals also constitute "judicial deci- 
sions" for this purpose. The word 
"arbitral" as applied to these courts ifl 
somewhat misleading, since they render 
their decisions on the basis of law and 



not as an attempted compromise of 
the conflicting demands of the parties 
to the arbitration. There are many 
individual volumes reporting the deci- 
sions of various arbitral tribunals. The 
most useful general collection is that 
published by the United Nations, Re- 
ports of International Arbitral Awards. 
The opinions of national courts on 
questions of international law also are 
entitled to considerable weight, even 
though in some instances these tribunals 
may be expected to take a somewhat 
more partisan view of the law than 
would an international tribunal. An 
annual volume, bearing the title of the 
International Law Reports, collects 
these decisions of national courts. 

The second of the two "subsidiary 
means for the determination of rules of 
law" listed in subparagraph 1(d) of 
Article 38 is "the teachings of the most 
highly qualified publicists of the various 
nations," or, more simply, scholarly 
writings. So vast is the amount of treaty 
law, State practice, and judicial deci- 
sions that we must rely upon learned 
writers to synthesize this material and 
reduce it to manageable proportions. 
The scholar of the law also fills the 
valuable functions of criticizing the law, 
of attempting to clarify its ambiguities, 
of suggesting the filling of gaps, and of 
charting the progress of the law for the 
future. In this country, the leading text 
is that of the late Charles Cheney Hyde, 
International Law, Chiefly as Inter- 
preted and Applied by the United 
States. In Great Britain and throughout 
the Commonwealth, international 
lawyers took to the two volumes of 
Oppenheim, periodically rewritten and 
supplemented by Judge Lauterpacht. 

This rapid survey of the origin and 
application of international law would 
not be complete without some reference 
to the effect given customary interna- 
tional law and treaties in the law of the 
United States. I think that it is probably 
safe to say that international law and 
treaties enter into the decision of 



hundreds of cases in our courts every 
year. International law is part of the law 
of this country and is applied routinely 
in our State and Federal courts. Treaties 
are, under the Constitution, part of the 
"supreme Law of the Land" on an equal 
footing with the Constitution and the 
laws of the United States. It is a 
consequence of the fact that statutes 
and treaties are on the same level that a 
treaty prevails over a prior inconsistent 
treaty, without, of course, impairing the 
binding force of the treaty interna- 
tionally. In this latter event, the Con- 
gress makes implementation of the 
treaty impossible and thereby causes a 
violation of the treaty by the United 
States. 

If the courts of the United States 
find it easy to give internal effect to 
international law, the position of the 
Executive Branch of our government 
and the Congress as regards the function 
of law in the conduct of foreign affairs 
is in marked contrast. The crucial test of 
the sincerity of a State's devotion to the 
rule of law is whether that State is 
willing to submit its international dis- 
putes to the compulsory jurisdiction of 
the International Court of Justice in the 
Hague. The Statute of the Court pro- 
vides that individual cases may be re- 
ferred specially to the Court or that 
States may recognize the jurisdiction of 
the Court as compulsory in all legal 
disputes concerning the interpretation 
of a treaty; any question of interna- 
tional law; the existence of any fact 
which, if established, would constitute a 
breach of an international obligation; 
and the reparation to be made. The 
United States has accepted the jurisdic- 
tion of the Court, but with several 
limitations, the most important of 
which excepts matters within the 
domestic jurisdiction of the United 
States, as determined by the United 
States. If this country does not wish a 
particular case to go to the Court it only 
has to say that the case is one within its 
domestic jurisdiction. It would not be 



10 



unfair to construe this statement as 
meaning that the United States accepts 
the jurisdiction of the Court except as 
to those cases in which it does not wish 
to accept the jurisdiction of the Court. 
A notable example of the unwillingness 
of the United States to submit its 
disputes to judicial settlement is the 
Interhandel case. The fundamental sub- 
stantive issue in that case is whether 
certain property seized by the United 
States during World War II is German, 
and thus enemy property, or Swiss 
property. The Swiss Government main- 
tains that the property in question is 
actually Swiss, and that the United 
States is obliged to submit the matter to 
arbitration under our treaties with that 
country. Here are two countries with 
similar economic systems, with like de- 
votion to the rule of law, with similar 
democratic institutions. There is no 
pitting of the Free World against the 
Communist World here, no great politi- 
cal issue, but solely a lawyer's question 
of whether there is an obligation to 
arbitrate and whether the property in 
issue belongs to Swiss or German na- 
tionals. It is hard to conceive of a case 
more narrowly legal in nature. And yet 
the United States seems to be unwilling 
to submit even the issue of our obliga- 
tion to arbitrate to judicial settlement. 
Our fulminations about the refusal of 
the U.S.S.R. to accept the jurisdiction 
of the Court as to a number of claims 
arising out of destruction of our mili- 
tary aircraft seem ludicrous in light of 
our own record as a possible defendant 
before the International Court of Jus- 
tice. 

Despite such lapses, I suppose that 



one of the values which we are at- 
tempting to defend against the abso- 
lutist world is the rule of law in the 
international sphere as well as in our 
various national ones. Our quest for 
legality and order inevitably will suffer 
if we forget how to apply law in our 
relations with our friends, and perhaps 
in our relations with those with whom 
we are less friendly as well. Quite aside 
from this moral commitment which we 
have made, the restraints which interna- 
tional law place on our own conduct are 
in our best interests. International rela- 
tions are made easier by a system which 
has mapped out where one State's juris- 
diction ends and another State's begins. 
In the explosive atmosphere of our 
contemporary world, a spark in the 
wrong place and at the wrong time 
could spell disaster. The person who 
acts inconsistently with law thus may 
do a tremendous disservice to his own 
cause and to his own country. This 
seems to me to be one of the most 
important single reasons why naval of- 
ficers must acquaint themselves with the 
body of law which governs the foreign 
relations of their country. The study 
which you will make of international 
law during the coming days should help 
you to identify the danger areas, to 
distinguish the real restraints of the law 
from those which exist only in theory, 
and to understand a problem put in 
legal terms. It is the hope of all of us 
who have come here to share our 
knowledge of international law with 
you that you will come to recognize in 
the law of nations a shield and a sword 
in the battle we wage for an orderly and 
peaceful world. 



t 



11 



AN INTRODUCTION TO THE ROLE OF LAW 



IN THE WORLD COMMUNITY 



W.T. Mallison, Jr. 



I. Why Study International Law? 

If we postulate that the moon is 
made of green cheese, I suppose that 
logic would compel us to conclude that 
green cheese is that of which the moon 
is made. Now, by analogy, if we assume 
that international law is a fraud, or is 
nonexistent, or at the very best is a 
smoke screen behind which to conduct 
power politics, then we can come to a 
number of easy and quick conclusions 
concerning many diverse and difficult 
problems. In the same way, if we make 
the opposite assumption and postulate 
that international law is a complete and 
perfect system, with adequate institu- 
tional structure and always effective 
sanctioning devices, then we also can 
come to some easy and quick conclu- 
sions on diverse and difficult problems. 
My comments will not recommend 
either one of these opposite and, I 
believe, equally fallacious assumptions. I 
will recommend a different course 
which will provide considerable analysis 
and some answers. They will not be easy 
and quick answers because it is essential 
to seek better answers than can be 
obtained through either one of the two 
fallacious assumptions just mentioned. 

Many years ago Admiral Mahan 
wrote: 



In a country full of lawyers 
and politicians, with a government 
possessing a President, Secretary 
of State, and a large corps of 
ambassadors and foreign minis- 
ters, it may be asked doubtfully 
why naval officers should give 
time to international law. The 
reply is that in this extensive 
system of functionaries the naval 
admiral or captain is incidentally 
one; and that, in international law 
as in strategy and tactics, he must 
know the doctrine of his country. 
In emergencies, not infrequent, he 
has to act for his superior, with- 
out orders, in the spirit and man- 
ner his superior would desire. If in 
war, the war may be complicated 
by a dangerous foreign dispute 
arising from action involving 
neutral rights; or, on the other 
hand, a neutral unright may be 
tolerated to the disadvantage of 
the national cause. In peace, 
injudicious action may precipitate 
hostilities; or injudicious inaction 
may permit infringement of 
American rights, of persons or of 
property. 
Some may think that Admiral Mahan 's 
views have now been rendered obsolete 
by modern communications systems. I 



12 



submit that they are as valid now as 
when first enunciated. How could a 
naval officer request instructions con- 
cerning an international law situation 
unless he understands it and can analyze 
and evaluate its factual elements? The 
crucial factual elements in an interna- 
tional law problem cannot even be 
identified, much less analyzed and 
evaluated, without an understanding of 
the applicable legal rules, norms, or 
principles. 

II. The Need for a Clarified Concep- 
tion of Law. 

In addition to recognizing the im- 
portance of international law, it is use- 
ful to have some idea of what we refer 
to when we say "international law." At 
the outset, we may examine some of the 
modern definitions of the term. 

Professor Brierly: "The Law of Na- 
tions, or International Law, may be 
defined as the body of rules and princi- 
ples of action which are binding upon 
civilized states in their relations with 
one another." 

Judge Moore: "By international law 
we mean the body of rules which 
regulate the intercourse of nations in 
war and peace." 

Professor Korovin: "International 
public law is the sum total of legal 
norms governing rights and duties of the 
collectivities of the ruling classes— par- 
ticipants in international intercourse." 

Notice the heavy emphasis on rules 
or norms in each of the foregoing 
definitions. Certainly, rules are a factor 
in international law. In addition, we 
need to know whether or not the rules 
can be enforced or sanctioned. If there 
is no prospect of enforcement of a 
particular rule now or in the near 
future, are we justified in stating that 
the rule is contemporary law? In the 
same way, note the heavy emphasis on 
nations, or "collectivities of the ruling 
classes" as Professor Korovin puts it, in 
the definitions. Certainly, nations are 



important participants in international 
law. If we are to have an adequate 
conception of international law, how- 
ever, we must inquire as to whether or 
not they are the only participants. 
Perhaps the quoted definitions are use- 
ful as far as they go but we require a 
more comprehensive conception. 

Some contemporary writers have 
overemphasized the importance of 
naked force of power. 

Professor Schwarzenberger: 

To the extent to which interna- 
tional law is a law of power, it 
fulfills the functions of an ex- 
treme society law. It gives the 
authority and sanctity of law to 
power and brute force; without 
seriously restraining the mighty, it 
serves them as a handy ideology 
with which to disguise some of 
the brutalities which are inherent 
in any system of power politics. 
Professor Gyorgy: 

This last point leads to the 
most relevant criticism of the 
legalistic school. Its exponents 
tend to live in the clouds hope- 
fully anticipating both high moral 
standards of international conduct 
and selfless law-abiding patterns 
of national behavior. It is safe to 
state that the era of such high 
expectations irretrievably dis- 
appeared on June 28, 1914, when 
the tragedy at Sarajevo set off the 
new age of total wars. 
Professor Hans Morgenthau has ap- 
parently confused the judicial aspects of 
international law with the entire sub- 
ject: 

The legalistic approach, by its 
very nature, is concerned with 
isolated cases. The facts of life to 
be dealt with by the legal decision 
are artificially separated from the 
facts that precede, accompany, 
and follow them and arc thus 
transformed into a "case" of 
which the law disposes "on its 
merits." Once a legal COM ha- 



13 



been decided or otherwise dis- 
posed of, the problem is solved, 
until a new legal case arises to be 
taken care of in similar fashion. 
The above quotation also appears in- 
adequate in explaining the operation of 
the decision-making process in interna- 
tional courts and arbitral tribunals. 

In 1625, Hugo Grotius, one of the 
greatest international lawyers, wrote, 
"... in our day, as in former times, 
there is no lack of men who view this 
branch of law with contempt as having 
no reality outside of an empty name." 
This quotation is from his famous book 
entitled, The Law of War and Peace. It 
is interesting to note that the larger part 
of the book dealt with the law of war. 
Two of the outstanding contributions 
made by Grotius should be mentioned. 
In an era when nationalism was the 
coming thing, the central problem was 
to bring kings, in some instances the 
absolute monarchs of the new national 
states, under the rule of law. Many of 
them regarded themselves as superior to 
the rule of law. Grotius invoked a 
conception of a higher law, a moral law, 
with which even a king had to comply. 
Without this, Grotius would, perhaps, 
have been a writer in political theory, 
but he would not have been a writer in 
the social control that we call law. He 
made another significant contribution 
which was ignored for about three 
hundred years and we are thinking 
about it seriously at the present time. 
He made a basic factual distinction 
between just war and unjust war, and so 
created the basis for a corresponding 
legal distinction between lawful war and 
unlawful war. This conception was re- 
called at the time of the League of 
Nations and it was articulated with 
more precision in the Kellogg-Briand 
Pact of 1928, which outlawed war as an 
instrument of national aggressive policy. 
The same idea is spelled out in the 
Charter of the United Nations at the 
present time. 

Contemporary international lawyers 



are working to increase understanding 
of international law and to improve it so 
that it can meet better the needs of the 
modern world. Professor McDougal of 
Yale University wrote in 1953: 

At the opposite extreme from 
overemphasis on technical rules, is 
an attitude increasingly common 
today which underestimates the 
role of rules, and of legal proc- 
esses in general, and overempha- 
sizes the importance of naked 
power. This attitude is sometimes 
referred to as the "pure theory of 
power" as contrasted with the 
"pure theory of law. " 
If we are to avoid overemphasis on 
either rules or power, what kind of an 
analytical method can best be em- 
ployed? It is clear that Professor 
McDougal is satisfied with nothing less 
than a comprehensive analysis of the 
entire international legal process in- 
cluding its factual, doctrinal, enforce- 
ment, and policy aspects. In other 
words, the perceptiveness of the analysis 
must be increased in both depth and 
scope to meet the complexity and im- 
portance of the problem rather than 
cutting the problem down to the size of 
an inadequate method of analysis. I 
acknowledge my intellectual debt to 
Professor McDougal with pleasure and 
assume full responsibility for the follow- 
ing comments. To establish firm intel- 
lectual foundations, it is necessary to 
start with a clarified conception of what 
we mean by "law." Table 1 sets out 
such a conception by stating three 
elements or requirements of "law." 

Table 1 

International law (and municipal law 
as well) may be regarded as: 

(1) A body of rules, doctrines, prin- 
ciples, or norms of behavior; 

(2) Enunciated or prescribed by 
competent government authority; and 

(3) Enforced with at least a modi- 
cum of effective control. 



14 



This table is not designed to set forth 
some philosophic theory as to what law 
should be; it is intended rather to 
emphasize an empirical conception of 
law as we deal with it in the everyday 
world. Without element (2) we would 
have the kind of control exercised by a 
pirate or a marauder but not law which 
is associated with government. In the 
absence of element (3) we would have 
illusion or self-deception but not law in 
the sense of a somewhat effective social 
control. Note that element (1) recog- 
nizes that law usually is prescribed in a 
body of rules. Lawyers are interested in 
rules as "sources" of international law. 
Such sources are listed conveniently for 
us in Article 38 (1) of the Statute of the 
International Court of Justice in the 
following words: 

The Court, whose function is to 
decide in accordance with interna- 
tional law such disputes as are 
submitted to it, shall apply: 

a. international conventions, 
whether general or particular, es- 
tablishing rules expressly recog- 
nized by the contesting states; 

b. international custom, as evi- 
dence of a general practice ac- 
cepted as law; 

c. the general principles of law 
recognized by civilized nations; 

d. subject to the provisions of 
Article 59, judicial decisions and 
the teachings of the most highly 
qualified publicists of the various 
nations, as subsidiary means for 
the determination of rules of law. 

Note that paragraph a. refers to the 
international legislative or law-making 
process while paragraph d. refers to the 
writings of legal scholars. Paragraphs b. 
and c. usually are associated with the 
judicial process but also they have an 
important role in diplomatic negotia- 
tions. It should be recalled that in the 
present stage of development of interna- 
tional law many controversies are re- 
solved through negotiation rather than 
adjudication. 



III. Participants in the World Com- 
munity Processes. 

In order to continue the analysis, we 
must now answer this question: to what 
subjects or participants is international 
law applicable? In providing an answer, 
we should take full account of con- 
temporary factual reality. No one 
doubts that nation-states are partici- 
pants. The real question is what are the 
other participants and Table 2 provides 
a listing. 

Table 2 

International law may be regarded 
as applicable to all participants in 
the world community processes and 
not only to nation-states. In addition 
to nation-states, the participants in- 
clude: 

1. The individual human being. 

2. International public organiza- 
tions. 

General purpose— United Nations. 
Special purpose— e.g., NATO. 

3. International political parties or 
orders, e.g., International Communist 
Party. 

4. International pressure groups, 
e.g., "cultural associations" which 
promote amity with and enmity to 
particular nation-states. 

5. International private associations, 
e.g., oil cartels and other international 
business associations. 

It seems clear that the most impor- 
tant participant of all is people. There 
has been a sterile dispute going on from 
the time of Grotius to the present 
concerned with whether or not interna- 
tional law applies to people. If you look 
at it realistically, the entire impact of 
international law is on people, either 
directly as such or indirectly through 
nation-states or one of the other four 
groupings listed in Table 2. It is well to 
recall that each of the group partici- 
pants must act through people. Conse- 
quently, people are of central inipor- 



15 



tance in international law as they are in 
any other type of law. 

Notice the words world community 
in the initial sentence in Table 2 and in 
the title of heading III. This is a phrase 
which has caused a lot of disputation 
also. Some say that one should not use 
these words because of the diversities in 
the world today. They emphasize Free 
World and Communist World disagree- 
ment on elementary matters needed to 
preserve the world. On the other hand, 
others emphasize the high degree of 
interaction across national boundaries 
and say that the words world com- 
munity describe this. In using the words 
world community here, this is no inten- 
tion to suggest that we have a perfect 
system of international law. The pur- 
pose is to point to the great and 
increasing interaction among all peoples 
throughout the world. This profusion of 
factual events may be conceptualized as 
a global process of social interaction 
containing within it several specialized 
processes concerning particular values 
such as wealth (economical), respect 
(human rights), enlightenment (com- 
munications and information), ethics 
(standards of morality and shared re- 
sponsibility), and power both formal 
and effective. The last-mentioned value 
process, power, is especially relevant to 
a study of law conceived of as an 
effective social control sanctioned by 
adequate power, or force, or less coer- 
cive enforcement devices. More detail 
on the world power process will be 
provided in heading IV. 

Let us now examine the other par- 
ticipants in Table 2. Category 2 involves 
two kinds of international public organi- 
zations. The following brief comments 
will be limited to the United Nations, 
the general purpose organization. Is it a 
separate participant or merely a register- 
ing device for the views of nation-states? 
Increasingly, it is regarded as a separate 
and full participant even by those who 
formerly accorded it only reluctant and 
contingent status. This is indicated by 



an important opinion of the Interna- 
tional Court of Justice in 1949 that the 
United Nations, like a nation-state, is 
legally entitled to make an international 
claim against a nation-state. 

Category 3, international political 
parties, is of tremendous importance 
because of the view of the Communists 
that there is a legal dichotomy between 
the state on the one hand and the 
International Communist Party on the 
other hand. The Communist view is that 
when they enter an international under- 
taking which binds the state, they are 
free to do anything they want to, 
providing they change hats and do it 
wearing the hat of the International 
Communist Party. Consequently, a com- 
plete analysis requires us to examine the 
activities of international political 
parties and their subjection, or lack of 
subjection, to international law. 

Categories 4 and 5 have been referred 
to by some writers as the minor actors 
on the international stage. They are 
mentioned here to obtain a full listing 
of participants. In some circumstances, 
they can be extremely important. 

IV. The Function of Law in the World 
Power Process. 

Now that we have identified and 
characterized briefly each participant, it 
is useful to inquire as to the factual 
activities of each participant and the 
legal control of these factual activities. 
This can be done by asking a series of 
questions concerning each participant. 
How is the participant (the individual or 
his group) admitted to the processes of 
formal and effective power? What are 
the bases of power used by the partici- 
pant? What are the methods of opera- 
tion (the practices or strategies) used by 
the participant? What effects are 
achieved by the participant? These ques- 
tions have been employed to analyze 
the role of each of the participants. The 
following comments are limited to an 
outline analysis of the role of the 



16 



nation-state as a participant. Table 3 
sets forth the principal elements of such 
an analysis based on the questions 
which were just propounded. This table 
is an outline of the main elements of the 
world process of formal and effective 
power as applied to nation-states. It is a 
conceptual framework which facilitates 
the location of legal problems in the real 
life context in which they exist. Legal 
doctrines are not independent entities 
apart from human processes of inter- 
action. Such doctrines serve human 
value objectives including the values 
sought by the groupings of human 
beings known as nation-states. 

Table 3 

World Power Process 

Nation-States 

A. Arenas— Admission. 

1. Creation of effective power units. 

2. Recognition as formal authority. 

B. Bases of Power. 

1. People. 

2. Territory. 

3. Institutions. 

(a) Internal structure. 

(b) External relations. 

C. Practices (methods of operation). 
Instruments of national policy: 

1. Diplomatic. Persuasion 

2. Ideological. 

3. Economic. 

4. Military. Coercion 

D. Effects Achieved. 

1. Particular (Jurisdiction). 

2. Structural 

(Succession of states and govern- 
ments.) 

Before proceeding with an inquiry 
concerning each of the main headings in 
Table 3, it is appropriate to emphasize 
that we are using this table as a frame- 
work for inquiry and not as an inven- 
tory of answers. As suggested earlier, 



this method of analysis is not recom- 
mended for obtaining quick and easy 
answers though it may be helpful in 
obtaining better answers. 

A. Arenas— Admission: Is Commu- 
nist China an effective participant in the 
world community processes? By not 
recognizing Communist China, the 
United States has not prevented its 
existence as an effective power unit. 
The diverse views of recognition of 
Communist China give us an insight into 
the legal doctrines and the practices of 
recognition. Generally speaking, the 
United States now takes the constitutive 
view of recognition. This view states, in 
summary, that only by recognition does 
a state become a participant; that is, 
recognition constitutes the state recog- 
nized as a state. The United States has 
had certain dealings with Communist 
China from time to time including 
unsuccessful attempts to present inter- 
national claims and rather protracted 
diplomatic negotiations with a Com- 
munist ambassador in Europe. The 
United States has accompanied these 
negotiations and attempted negotiations 
with express disclaimers of recognition. 
It might appear to an objective observer, 
however, that negotiating itself amounts 
to a degree of recognition. 

The British, in contrast, have taken 
the declaratory view of recognition 
which, in broad and oversimplified 
terms, states that recognition is only a 
"declaratory" act and does not bring 
into existence a state which did not 
exist before. This view acknowledges 
that a state may exist in fact without 
being recognized. 

Some writers have stated that there is 
a legal obligation to recognize a govern- 
ment with control over people and 
territory. If there is, it does not appear 
to be law in the sense of an effective 
obligation. 

We now may summarize by reference 
to heading "A" in Table III. Communist 
China is an effective power participant 



17 



but now is denied admission to some 
arenas of formal authority. 

B. Bases of Power: This heading 
deals with facts concerning people, terri- 
tory and institutions and their legal 
control. 

How do people go from one nation- 
state and become admitted to the politi- 
cal and economic processes within 
another nation-state? How are aliens 
treated? Is the attempt made, as in most 
totalitarian societies, to coerce loyalty, 
or is the loyalty of the people to the 
state voluntarily given because of their 
willingness to identify themselves with 
the objectives of the state? The whole 
law of nationality then, and of immigra- 
tion, is relevant here. These topics fre- 
quently are referred to as a branch of 
domestic or municipal law rather than 
international law. Nevertheless, they are 
dealt with in the international law 
books because their impact across inter- 
national boundaries are of tremendous 
importance. 

The second heading under Bases of 
Power, territory, is of particular signifi- 
cance in international law. When the 
nation-states system arose, legal rights 
and duties were organized and adminis- 
tered on a territorial basis. If one goes 
beyond that to ancient city-states, and 
to the little feudal duchies and princi- 
palities in Western Europe, the basic 
organization was a limited territorial 
area with a castle in the middle and a 
wall around it. Warfare was conducted 
on a horizontal territorial basis and 
particular pieces of real estate consti- 
tuted primary military objectives. 

Historically, international rules con- 
cerning acquisition and relinquishment 
of territory have been of great impor- 
tance. The problems relating to terri- 
torial waters are of great contemporary 
importance. How far do territorial 
waters extend from the shore? There 
has been a wide measure of disagree- 
ment on this in recent years as indicated 
by the numerous national reactions at 



the two Geneva Conferences on the Law 
of the Sea. It seems quite clear that all 
legitimate national interests, and the 
broad interests of the world community 
as well, can best be served by the 
narrowest possible territorial sea and by 
maintaining the oceans as a great inter- 
national resource for the use and benefit 
of all peoples. 

Institutional structure, both internal 
and external, the last major heading 
under Bases of Power, leads into other 
topics of international law. Internal 
structure is of tremendous importance in 
terms of the building of effective bases of 
power for operation in the international 
community. Note the striking contrast 
between the United States at the present 
time operating under a federal govern- 
ment which has adequate powers in the 
military and foreign affairs fields and 
compare it with the dismal experience 
under the so-called Articles of Confedera- 
tion and Perpetual Union. Happily, per- 
petuity in that instance was limited to 
just a few years. The wise men who wrote 
the United States Constitution under- 
stood that thirteen competing and almost 
warring states could have very little 
effectiveness in the international com- 
munity. 

External institutional structure, such 
as NATO, constitutes important bases 
of power and involves difficult legal 
problems. NATO, according to the 
Soviets, is a violation of international 
law, because it is not consistent with 
what the Soviets say is the basic legal 
principle of equality of states. NATO, 
according to their argument, subordi- 
nates a country like Luxembourg to a 
country like the United States. Not only 
that, one may add if countries are made 
so independent that they can't have 
effective alliances, then you are in the 
happy position, from the Communist 
standpoint, of being able to knock them 
off one at a time. 

C. Practices (methods of operation): 
What are the practices of strategies of 



18 



nation-states? Here we have the largest 
single body of international law doc- 
trine in any of the four headings in 
Table 3. Nations operate in terms of 
four principal instruments of national 
policy which are listed in the left hand 
column. The instruments of national 
policy should not be treated as airtight 
conceptual or operational compart- 
ments. They merge into each other and 
usually are used altogether with varying 
emphasis on each instrument, whether 
in time of peace or in war. The two 
words, Persuasion and Coercion, with 
the double-headed arrow designed to 
indicate interaction, are intended to 
point out and emphasize a continuum 
between diplomatic or peaceful pro- 
cedures (persuasion) at one extreme, 
going through various middle grounds to 
heavy reliance on the military instru- 
ment (coercion) at the other extreme. 
In this conception of a continuum, 
using all instruments of national policy 
with varying intensities, we may regard 
war as a situation where there is heavy 
emphasis on the military instrument, 
and peace as one where there is rela- 
tively heavy emphasis on the diplomatic 
instrument 

Most of the legal rules here are under 
categories No. 1 and No. 4, Diplomatic 
and Military. Of course, we have some 
rules including blockade, contraband, 
boycott, economic measures short of 
war, and so on, under category No. 3, 
and we even have a few rules under No. 
2, Ideological. However, when one 
country can call through its official 
radio upon the citizens of another coun- 
try to do themselves a favor and murder 
their king or president, it would seem to 
me we might as well face up to it and 
admit that we don't have many legal 
limitations on the ideological instru- 
ment of national policy. Many say that 
this is a very good thing. The argument 
is that it is better to have a cold war of 
words than a hot war involving military 
confrontation. 

The whole law concerning diplomacy 



and the making, interpretation, ap- 
plication, and revision of agreements 
would be considered appropriately 
under the diplomatic heading. The 
law of diplomatic privileges and 
immunities is one of the most ef- 
fective parts of international law. It 
is effective even in our dealings with 
the Communists. Why? Because self- 
interest and reciprocity operate as 
sanctions. If they don't treat our 
diplomats according to the rules, 
then we do not have to treat their 
diplomats according to the rules. 

There is a vast body of doctrine 
concerning agreements. We will refer 
only to the problem of interpretation 
and application of international agree- 
ments. First of all, we sometimes hear 
something about a so-called plain- 
meaning rule. It can be suggested that 
if one is dealing with a very easy 
problem, the type of problem that 
everyone knows the answer to, then 
the plain-meaning rule will provide 
the meaning of an international agree- 
ment But if one is confronted with a 
serious, thoughtful problem where 
there are alternative meanings, one 
has to abandon the plain-meaning fan- 
tasy and use a multifactor analysi- of 
all the relevant factors located in the 
context of the objectives of the 
treaty. Sometimes, articles, sections, 
subsections, and even words take 
meaning and content from context 
which they do not have standing 
alone. For example, in interpreting 
the United Nations Charter and sa\ 
ing, in effect, "When we are blocked 
in the Security Council by the Soviet 
veto we don't have to give up and go 
home. We can go to the General 
Assembly and it can, under the 
famous Uniting for IVaoe Resolution 
of the time of the Korean War, take 
effective action," we arc guided by 
the context of the United Nations 
basic purpose to preserve the peace 
and repel aggression and the principle of 
effectiveness in interpretation of the 



19 



powers granted to the General Assembly 
under the Charter. The United Nations 
was designed to be an effective organiza- 
tion and not just a chamber for lawyer- 
like debates. 

The law of war is an important topic 
during the War College annual Interna- 
tional Law Study and the basic princi- 
ples of that law should be mentioned 
here. The real reason for a law of war is 
the basic world community policy, even 
in times of war, to have minimum 
unnecessary destruction of human and 
material values. If a war is anything like 
World War II or the Korean War, there 
will be a lot of destruction of both 
human and material values. In face-to- 
face combat, there has to be killing. In a 
non-combat situation, there doesn't 
have to be killing. 

Two basic principles of the law of 
war, "humanity" and "military neces- 
sity," are complementary and neither 
one may be applied without considera- 
tion of the other. "Humanity" is de- 
signed to prevent destruction of human 
and material values unnecessary (that is, 
irrelevant or disproportionate) to reali- 
zation of lawful belligerent objectives. 
"Military necessity" is the legal accom- 
modation of the requirement for effi- 
ciency in the conduct of hostilities. 

D. Effects Achieved: Factually, 
some nations are looking for security. 
Security can be viewed negatively, as 
freedom from wanton aggression and 
international coercion and, positively, as 
the opportunity to seek all values in a 
peaceful and rational context. 

Legally, effects can be analyzed 
under "Jurisdiction" and "Succession." 
The former is resulting legal control 
over people, over things, over territory, 
over national ships, and so on, as a 
result of a nation-state's participation in 
the world community processes. 

Structural effects relating to the doc- 
trines and practices of state and govern- 
ment succession is a branch of law 
concerned with insuring a minimum 



degree of responsibility in successor 
states and governments. One of the 
most famous cases here is the Tinoco 
case decided in 1923. One Tinoco over- 
threw the lawful government of Costa 
Rica in 1917 and, by procedures of 
force and violence contrary to the Costa 
Rican Constitution, he established his 
own government and two years later he, 
in turn, was overthrown. The legal 
government (that is, legal under the 
domestic law of the Costa Rican Consti- 
tution) was restored to power in 1919 
and the British Government brought an 
international claim against the legal gov- 
ernment for alleged illegalities com- 
mitted by the revolutionary government 
of Tinoco during the two-year period. 
The case was submitted to arbitration. 
Costa Rica argued, in effect, "We're not 
responsible for what was done during 
this period. This man was in power 
contrary to our domestic, municipal, 
constitutional processes." The British 
argument was that he was the effective 
head of the effective government during 
the two-year period, whatever the local 
rules were. The arbitrator held that the 
new government (the legal government 
under domestic law) was a successor 
government and was legally responsible 
for the acts of the revolutionary govern- 
ment during the two-year period. With- 
out a doctrine like this, and without 
some enforcement, a state could always 
avoid its obligations by the simple ex- 
pedient of changing its form of govern- 
ment and saying that whatever preceded 
the new government was contrary to 
local law. This is a good example of a 
situation in which international law 
takes precedence over local law. 

V. Sanctions and the Urgent Need to 
Construct a More Effective Interna- 
tional Law System. 

Some attention has been devoted to 
sanctions and enforcement problems 
particularly in connection with the 
second heading in Table 1. It has been 



20 



pointed out that without at least some 
effective control or sanction we do not 
have law. The importance of the subject 
justifies further consideration. Some 
lawyers appear to think that inadequate 
sanctions are a particular problem of 
international law. A glance at municipal 
law should be enough to correct that 
misconception. The general ineffective- 
ness of criminal law sanctions as preven- 
tive deterrents is notorious. 

Sanctions may usefully be conceived 
of as anything which tends to induce 
compliance with law. Probably the most 
effective sanctions are the ones which 
induce a mental expectation that more 
is to be gained in the long run by 
adhering to the law than by violating it. 
It is important to emphasize that sanc- 
tions are rarely a matter of "yes" or 
"no." It is very difficult to list a 
sanction which is completely effective 
or completely ineffective in particular 
situations. Sanctions are usually a 
matter of degree, that is, a matter of 
"more" or "less." The central task with 
international law enforcement is to 
mobilize the entire range of available 
sanctions (ranging from persuasion 
through intermediate stages to coercion 
and including simple force where neces- 
sary) on the side of the law and against 
the law breaker. The difficulty of this 
task is great in international law because 
of the necessity of building a more 
effective and rational international insti- 
tutional structure than the present ex- 
treme nation-state system with its re- 
curring tendencies toward anarchy. The 
alternative of possible world destruction 
is so grim that we cannot hesitate in 
accepting the task and beginning the 
work. 

It is believed that a simple example 
will reveal some of the complexities of 
sanctions problem. At the beginning of 
the Korean War, the Communists an- 
nounced that they would adhere to the 
1929 Geneva rules concerning the treat- 
ment of POWs under international law. 
The overwhelming evidence in our 



possession indicates substantial violation 
by them of the Geneva rules. Neverthe- 
less, the United States continued to 
observe the prescribed fair standard of 
treatment for POWs. Why? Table 4 is 
designed to show some of the principal 
sanctions which induced compliance by 
the United States. 

Table 4 

Some sanctions available to induce 
the United States to comply with inter- 
national law standards concerning treat- 
ment of POWs during Korean war: 

1. Reciprocity. 

2. Obligation to comply with inter- 
national agreements. 

3. Basic standards of morality. 

4. Favorable publicity. 

5. Efficient conduct of military 
operations (encourage enemy to desert). 

Now let us examine each category in 
Table 4 in some detail. The first cate- 
gory, reciprocity, is usually regarded as 
the basic sanction for treatment of 
POWs according to the international law 
standard. The assumption is that each 
side wants fair treatment of its prisoners 
in the hands of the enemy so it gives 
similar treatment to POWs in its control. 
We know that this assumption was not 
valid as applied to the Communists in 
Korea. What are the other possible 
sanctions? 

Under Category 2, it is widely be- 
lieved that the United States does not 
violate lightly an international obliga- 
tion. 

Category 3 involves, among other 
things, the difference between shooting 
a man in a combat situation and shoot- 
ing or torturing a helpless POW. 

Category 4, a favorable use of the 
ideological instrument of national 
policy, has been important to the 
United States ever since the Declaration 
of Independence referred to "a decent 
respect to the opinion of mankind." 

Category 5 involves recognition of 
the fact that one of the recurring 



21 



characteristics of the workers' and peas- 
ants' paradises is that people (often 
workers and peasants) try to escape. It 
would hardly be in the interests of the 
Free World to prevent these escapes by 
promising and according brutual treat- 
ment to would-be deserters and escapees. 
Sometimes when one speaks of sanc- 
tions, the discussion goes into some- 
thing called "world government." This 
is something that is so general and 
normatively ambiguous that one is hard 
put to determine its limits and analyze 
it. By "normatively ambiguous," I mean 
that characterizing government as world 
government attempts to set up some 
kind of a norm or standard which is so 
ambiguous that it doesn't describe any- 
thing very meaningful. Nevertheless, on 
occasion, otherwise thoughtful and 
courageous men who have faced enemy 
fire without fear have become fright- 
ened by the mere words "world govern- 
ment" When a person referring to 
world government is pressed concerning 
his meaning, he may say that he means 
limited world government This is a 
little more precise and meaningful. It 
should include an improved interna- 
tional structure and more effective in- 
ternational law sanctions. It is possible 
to be even more specific and refer to the 
offer the United States made for limited 
world government in 1946, which in- 
cluded precise terms. I refer to the 
Baruch Proposals of 1946 which were 



specific proposals for enough limited 
world government to prevent nuclear 
and thermo-nuclear disaster. They in- 
cluded enough control and enough in- 
spection or sanction to internationalize 
effectively atomic energy. As you know, 
the Soviet Union rejected these pro- 
posals. In considering the term "world 
government," it is well to remember 
that the central objective of the Com- 
munists is to establish a world totali- 
tarian government with complete con- 
trol over matters which could well 
remain national and local. If we respond 
that a limited world government with 
enough sanction and sufficient institu- 
tional structure to prevent world de- 
struction is impossible, it seems clear 
that we then pose no rational limited 
democratic world government alterna- 
tive to the totalitarian world govern- 
ment objective of the Communists. It is 
evident that if improved sanctions lead 
into limited democratic world govern- 
ment, and so include enough effective 
control at the world level to maintain 
peace, the world and its human value 
processes will be preserved for the use 
of future generations. This high enter- 
prise would require the effective partici- 
pation of an organization much like the 
United States Navy to preserve the rule 
of law in the world community for a 
considerable future period. We had 
better get ahead with the task while 
time remains. 



f 



22 



THE ROLE OF INTERNATIONAL LAW 



IN THE WORLD COMMUNITY 



John H. Spencer 



In effect, I am being offered to your 
salivating fangs as a proponent of what 
some have labeled a big, blooming, 
buzzing confusion— international law. 
I'm reminded that the philosopher 
Hobbes had told us that man is the only 
beast that preys on its own kind. Now, 
this morning, in order to present the 
narrowest possible target to your com- 
bined attacks— 80 percent of the world's 
fighting power is represented here this 
morning in the persons of the U.S. 
Armed Forces and those 31 friendly 
nations— I wish to define the terms used 
in the topic for today's lecture which is 
"The Role of International Law in the 
World Community." 

I do so because it is important in this 
introductory lecture to the course on 
international law that we proceed 
directly to the ultimate fundamentals. 
Let me, therefore, turn first to the two 
words "world community" and suggest 
to you that as a lawyer for whom 
international law has long been a source 
of livelihood, I have some doubts 
whether one can profitably use this 
term "world community." The political 
scientist, the economist, the sociologist 
—all can accept this expression with 
greater ease than can the lawyer who 
must compete in a world of adversaries. 
I would propose that for today we 
substitute for this phrase the words 
"world arena." The expression "world 
community" implies a plurality of states 



and nations drawn by common interests 
into collaborative and structural rela- 
tionships to each other promoted by 
international organizations. In fact, 
reality is much closer to a scenario in 
which highly autonomous and competi- 
tive states seek aggressively to advance 
and defensively to protect what each 
deems to be its national objectives 
through reciprocity rather than com- 
munion of interests. In this arena the 
actors are states, with international or- 
ganizations largely reduced to the role 
of disapproving spectators. 

Let me go into this matter a little 
more thoroughly, yet briefly, I hope. I 
suggest that if we look at the United 
Nations, a moment's reflection would 
reveal that the General Assembly can 
take no decisions in this world scenario 
apart from internal housekeeping 
arrangements. It can make only recom- 
mendations. You will recall that 
recently Israel was severely reproved at 
the General Assembly for declaring that 
she would refuse to recognize the reso- 
lutions on Jerusalem voted in June of 
this year. But the criticism emerged 
precisely from those states that 20 years 
ago had adopted exactly the same posi- 
tion declaring that they utterly rejected 
the United Nations resolutions relating 
to the admission of Israel. The U.S.S.R. 
has adopted a similar attitude on other 
questions as had indeed, on occasion, 
the United States itself. 



23 



Now, with regard to the Security 
Council you are aware of the veto 
power, and certainly the United States 
is bound by nothing in substance at the 
Security Council which we do not wish 
to be bound by. 

You may say, "Let us leave this 
problem aside; is it not a fact that the 
United Nations operates as a world 
community? How about these U.N. 
Forces in the Congo, Cyprus, Yemen, et 
cetera?" However, if we look at the 
present structure of the United Nations 
we can see that here the contributions 
are on a state-to-state basis. The U.N. 
operations in Yemen and Cyprus are 
supported not by the United Nations 
but individually and voluntarily only by 
those states which choose to participate. 

"Well," you may say, "how about 
the International Court of Justice?" I 
would suggest that the same conclusion 
obtains. No state may be bound or 
hauled before it without its consent. 
Now it is true that under article 36 of 
the Statute of the Court the United 
States has recognized the so-called com- 
pulsory jurisdiction of that tribunal. But 
it is also true that we have adopted what 
is called the Connolly Amendment 
which reserves to the United States the 
sole determination as to what is a 
domestic matter, which means that the 
United States alone decides whether it 
should submit to the jurisdiction of that 
Court. This again is a form of veto not 
unlike that which we enjoy in the 
Security Council. This formula has 
proved so attractive to the rest of the 
world that where it has not been liter- 
ally adopted elsewhere it has been ex- 
tended by the Court through reci- 
procity. The result is that, with but two 
exceptions at this moment, there are no 
cases before the Court. 

"Well," you may say, "how about 
other areas? How about the European 
Economic Community and its Interna- 
tional Court?" Again the same conclu- 
sion probably obtains. The cases are still 
not convincing that the Court of the 



European Community enjoys the right 
to pronounce judgments binding on the 
member states. I am prepared to admit 
that in the Van Gand case some argu- 
ment could be advanced to that effect. 
But, by and large, this is not the case. 
Much has been made of the European 
Court of Human Rights and the right of 
an individual to bring there a complaint 
against one's own government for viola- 
tion of human rights. However, article 
25 of the Treaty establishing that Court 
requires the advance consent of the 
state to get a case there. 

What about other areas? Let me just 
mention one other point, and with this I 
return to the United Nations. One of the 
most fundamental articles, if not the 
most fundamental article of the Charter, 
is article 51— self-defense. And as you 
know, in national law (we international 
lawyers frequently call it municipal law) 
self-defense is a privilege reserved clearly 
in its first stage to the personal and 
subjective assessment by the individual 
that his life is imminently threatened. 
True, the courts may ultimately, in a 
second stage, decide that there was no 
legitimate basis for sensing such a threat. 
However, in the case of states and self- 
defense under article 51 of the Charter 
there is, practically speaking, no such 
second stage. Just as with the individual, 
the state, according to article 51, clearly 
has the initial determination as to 
whether or not it may act in self-defense. 
And where is the second stage, that of 
adjudication? Adjudication is made, not 
by the International Court of Justice, but 
by the Security Council. The right of 
self-defense as determined by the individ- 
ual state under article 51 remains in force 
until the Security Council takes a deci- 
sion one way or the other. Yet, once 
again the veto comes into play. The five 
great powers will invariably exercise the 
veto privilege either in their own behalf 
or that of their clients, and so a decision 
will never be taken on this point, and the 
original unilateral determination will re- 
main in force. 



24 



Aside from custom, what about 
specific international legislation in the 
form of multilateral treaties? Let me, 
for lack of time, dredge up multilateral 
conventions in maritime matters such as 
the North Sea Fisheries, the North 
Atlantic Fisheries, the Northwest Pacific 
Fisheries, the Safety of Life at Sea, 
Rules of the Road, and the Pollution 
Conventions. What happens here? In 
every case the execution and administra- 
tion are reserved, not for international 
organizations, but for the states them- 
selves. Thus, in the face of sovereign 
states we are confronted in ultimate 
analysis with a world arena rather than a 
world community. 

What I am trying to say up to this 
point is that we still have to deal 
essentially with an adversative system of 
autonomous states, and with such a 
scenario it is hard to talk about an 
international community except in re- 
spect of the slow accretion of custom 
which, by and large, is more concerned 
with generalities than with hard preci- 
sion. It is easier to talk about an 
international arena. 

In this situation, what can we con- 
clude? Well, before we decide anything I 
would suggest that we ask ourselves why 
we have a situation of this sort. Partly it 
is, of course, an inheritance from the 
past when there were few international 
organizations. I do not deny that im- 
portant international organizations 
exist, but what I am suggesting is that 
from the point of view of international 
law they remain peripheral to state 
enforcement I say this despite the fact 
that, as undoubtedly many of you, I 
have myself spent many years at the 
United Nations. 

There are, however, two more funda- 
mental explanations of the situation 
linked to the nuclear era in which we 
are living. The first is a situation so 
familiar to all of you that I need not 
belabor it— namely, that the great world 
powers are locked in a nuclear stale- 
mate. Now a nuclear stalemate means 



that from the point of view of or- 
ganizing an international community, of 
organizing security, we are not pre- 
pared, we are psychologically as well as 
militarily unprepared, to commit our 
very existence to a legal obligation. As 
former Secretary of State Acheson has 
observed, "The survival of states is not a 
matter of law." Now, if this is the case, 
is it not difficult to move into an era of 
effective, indeed, even legally valid 
alliances? I would suggest that it is, and 
if we do not have alliances, how again 
can we talk of an international com- 
munity? Talk of arena? Yes. 

Let me illustrate this briefly, first by 
the Vietnam situation. Here we— that is 
to say, sometimes the Government, 
sometimes the press, sometimes public 
groups— have frequently said, "We are in 
Vietnam in execution of our SEATO 
obligations." I suggest that we are not in 
Vietnam in execution of our SEATO 
obligations. I referred a moment ago to 
article 51, the gut article of the Charter, 
I would propose that we are in Vietnam 
on other grounds including that of 
collective self-defense. However that 
may be, let us look at the essential 
article of SEATO, which is article 4. 
Article 4 says this: "Each party recog- 
nizes that aggression by means of an 
armed attack in the treaty area . . . 
would endanger its own peace and 
safety, and agrees that it will in that 
event act to meet the common danger in 
accordance with its constitutional 
processes." Is that an obligation? Most 
certainly it is not! Again, in the world 
arena of adversative states we have 
carefully reserved to ourselves freedom 
of ultimate unilateral decision. This 
language exposes the nuclear stalemate. 
This is not an alliance, it is a declaration 
of independence. 

Let me mention another aspect of 
the same problem. In the days of the 
League, enormous importance was 
attached to the concept of collective 
security which is the automatic obliga- 
tion to apply force upon a call for the 



25 



same by the collective organization. 
This was the contribution of the League 
of Nations to world peace. From my 
experience at the United Nations, dating 
from the San Francisco Conference 
itself, I can testify as well to the 
frequency with which this concept was 
discussed in the first decade of the 
United Nations. But today, gentlemen, 
do we hear about collective security? I 
would suggest we do not. It was none 
other than Adlai Stevenson, our dis- 
tinguished Representative for so many 
years at the United Nations, who, a few 
months before his death, said this: "The 
truth is that the best hope for peace 
with justice does not lie in the United 
Nations. Indeed the truth is almost 
exactly the reverse. . . . Until the inter- 
national community"— you can see he 
let me down— "is ready to rescue the 
victims, there is no alternative to na- 
tional power. " 

So far I have been speaking of the 
nuclear stalemate of the great world 
powers. This is the first of the two more 
deeply fundamental reasons why we are 
living in a world arena rather than a 
world community. Let me now turn to 
the second cause, and at this point I am 
talking about the midde-sized and the 
small states. Here we encounter another 
phenomenon of the nuclear era, a devel- 
opment which, for lack of a better way 
of tagging it, I choose to call "the 
inversion of power." Now, what do I 
mean? I mean simply what the Prime 
Minister of the United Kingdom re- 
marked several years ago, namely, that 
the nuclear stalemate between the great 
powers implies added freedom of action 
on the part of the middle-ranking and 
small states. Because of the reluctance 
of the great powers to intervene, the 
smaller states have obtained an im- 
punity for their actions that had not 
previously been possible. This has 
greatly increased the proliferation of 
aggressions and conflicts among the 
small and particularly the developing 
states of the world. I would suggest that 



if we look at the world scene this 
conclusion rather authoritatively im- 
poses itself. How about 1956 and the 
Suez crisis? How about the Suez crisis 
of today? How, indeed, about the Viet- 
nam conflict? Does not this conflict 
constitute an illustration of both the 
nuclear stalemate and the inversion of 
power? 

There is another area in which I 
would suggest that this inversion of 
power is manifested. The 19th century 
saw the progressive disappearance of 
independent states; for example, the 
Kingdoms of Burma and Madagascar 
were both conquered and disappeared as 
independent states. Today they have 
reappeared on the world scene. I do not 
suggest that the inversion of power is 
solely responsible for this reappearance, 
but I do submit that it has made it far 
easier for the renascent and newly 
emerged states to maintain their inde- 
pendence and freedom of maneuver. 
This independence is accompanied by a 
great sensitivity to all that concerns 
sovereignty and freedom of choice. So 
we have, on the one hand, the great 
powers of the world locked in nuclear 
stalemate and the middle and small 
states, thanks to inversion of power, 
profiting from a freedom of action that 
previously had not been available. The 
combined effect of the nuclear stale- 
mate and the inversion of power has 
been to prevent the nuclear powers 
from ignoring the small states and to 
afford the latter freedom of maneuver 
far beyond the limits of their actual 
physical power. Thus the world be- 
comes an arena rather than a com- 
munity, an arena crowded with giant, 
middle-sized, and dwarf states, all com- 
petitive if not combative, with interna- 
tional organizations playing largely the 
role of mostly disapproving spectators. 

At the same time we cannot ignore 
the almost stupendous disparity be- 
tween the real physical strengths of the 
nuclear giants and those of the re- 
emerged and emerging states. There is, 



26 



in consequence, a deep-seated and all- 
pervasive cleavage of interests and 
claims as between the great and the 
small states— a dichotomy to which it 
will be necessary to return. 

So much, then, for the first part of 
my remarks— it is the world arena of 
competitive and combative states rather 
than a world community that consti- 
tutes one of the ultimate fundamentals 
of our problem. 

I now come to the term "interna- 
tional law." How can we confidently 
assert that in such a world arena interna- 
tional law could play any role? 

We are, of course, faced with the 
initial question as to what is law. Saint 
Augustine is alleged to have said that if 
he were asked what "time" is he would 
reply, "Yes, I know perfectly well what 
'time' is, but I can't tell you what it is." 
Do we not have this question with law? 
What, then, is law? 

There are many criteria one might 
try to apply. Let me briefly suggest 
some of them. Many say that it is the 
command of the sovereign, and since 
international law can reveal no such 
sovereign command, it is not law. Well, 
this does not help us in the final 
analysis. In terms of our national law, 
we arrive ultimately at the Constitution. 
It is the sovereign, whether a king or the 
people, that grants the Constitution, 
and what is the Constitution? It is 
essentially a series of restrictions on the 
freedom of that sovereign. How, then, 
can the sovereign command a limitation 
upon himself? Yet that is exactly what 
we— the people who are the sovereign in 
the United States— are doing with the 
first 10, the 14th, and other amend- 
ments to the Constitution, are we not? 
So I do not think that the concept of 
command is extremely helpful to us in 
proving that international law is not 
law. 

Now, it is said that since interna- 
tional law has neither legislature nor the 
threat of compulsory recourse to courts 
that characterize national law, it cannot 



be considered law. I am going to pass 
over the question of legislature. I do so, 
in part, because the answer is here more 
or less apparent, and, secondly, because 
I do think that democratic processes or 
participation in law-making is largely 
irrelevant as a criterion of any law, be it 
national or international. 

Let us turn then to the judiciary. I 
suppose if we come back to the funda- 
mentals the requirement of resort to 
courts is not helpful to us in deter- 
mining whether or not legal norms are 
involved. Professor Chayes reminds us 
of the situation that arose in the closing 
months of the Eisenhower Administra- 
tion. You will perhaps recall that Con- 
gress at that time called upon the White 
House to deliver over certain highly 
secret documents, and the President 
refused to transfer those documents. 
Could Congress have cited President 
Eisenhower before the Supreme or any 
other Court? There is no remedy be- 
tween the branches of the Government 
for accomplishing any thing of the sort. 
One branch may not sue another branch. 

We come now to what I'm sure 
youVe all thinking of— sanctions. Law is 
an order backed by the threat of force, 
and if international law has no sanction 
it is not law. Well, I am going to suggest 
that international law does have sanc- 
tions, and indeed a very important 
sanction which ties in directly with this 
concept that I have been laying before 
you— the adversative autonomy of 
states. But more of this later. First, let 
us look at sanction as a threat of force. 
It is by no means certain that such a 
sanction is a criteria of law. All of you 
gentlemen belong to a highly sophisti- 
cated and integrated community — the 
military community. Now I would ask 
you: How many of you respect military 
law because of the threat of force? I 
would suggest you obey it because of 
your respect for authority within the 
community and of your demand that 
your own authority be respected 1>\ 
those subordinate to you. Moreover, a 



27 



great deal of our own municipal law, 
our national law, is irrelevant in terms 
of any sanction. Much of our law, 
perhaps most of it, is concerned with 
determining privileges and procedures. 
For example, to what extent would you 
say that sanction is important to Medi- 
care legislation? I would think only to a 
very minor degree. Viewed in terms of 
actual application of sanctions, interna- 
tional law fares no worse than do other 
branches of the law. Are we today in 
position to declare that the pandemic of 
violence in the urban centers of the 
United States, as indeed abroad, and as 
evidenced by the President's recent 
appeal to abandon and disorder, 
signifies that national state, and munici- 
pal law do not exist? 

Finally, it is said that international 
law is not law because so much of it is 
dominated by politics. Yet, would you 
be prepared to assert that the laws 
enacted by our Congressmen and 
Senators are not transcendently domi- 
nated by politics? Could one assert that 
military science and doctrine are un- 
important in the war in Vietnam be- 
cause political considerations play no 
small role in decisions as to strategy, 
tactics, and deployments including 
bombing? 

If we may then take it that interna- 
tional law can and should be considered 
as fulfilling the requirements and cri- 
teria of law, the next question is: "Why, 
in this world arena of adversary states, 
should we use law at all instead of force 
and threats of force? Are not the latter 
lar more effective and therefore more 
economical than efforts to apply rules 
of law? Why should we not shoot our 
way through problems?" Is not this 
logical? 

Well here, gentlemen, I must confess 
that I would like to introduce another 
model. I have talked about the world 
arena rather than a world community. A 
second model, for my part, is what 
Wohlstetter and others have called the 
"Great World" concept, as distinguished 



from that of the "Small World." Some 
of you may remember that a decade ago 
there was a great deal of talk of the 
small world. Sophistication of transpor- 
tation and communications had shrunk 
the world. I would suggest, on the 
contrary, that these capabilities and this 
array of resources and equipment have, 
within the context of application of 
military strength and other measures of 
force, had the effect of expanding 
rather than reducing the apparent 
world. Far be it from me, a civilian, to 
suggest to you, technicians and profes- 
sionals, that distance is unimportant 
today in solving problems of missile 
firing or logistics. If so, why is it that 
orbiting satellites and hundreds of mili- 
tary and scientific personnel are con- 
stantly engaged in the excruciatingly 
precise computations required for re- 
fining down in the last foot the exact 
distances that separate missile launching 
sites from possible targets? With regard 
to logistics, possibly 20 years ago we 
might not have been able to meet the 
logistic challenges of a Vietnam opera- 
tion which still remain of herculean 
proportions and of staggering costs. So, 
even today it is not always feasible to 
shoot our way through. There are also 
the political considerations. Reflect, for 
example, on the Congo airdrops of 1963 
and 1967. Can we say that these were 
useful or highly effective operations? 

I was in the Middle East in 1956 at 
the time of the first Suez crisis and 
recall that those elements of the Egyp- 
tian population that were the most 
articulate in their opposition to the 
French and British landings were not 
the Egyptians, but precisely the French 
and the British residents. They knew 
perfectly well what they were faced 
with. No matter how swiftly their own 
national forces moved, they could not 
arrive in time to protect them or their 
properties. 

Given this great world model, we 
cannot go around shooting our way 
through problems. Even a gangster state 



28 



has at some point to establish rules if 
only to economize the costs of the 
shooting it would otherwise have to 
resort to. At some stage the virtues of 
predictability and orderliness become 
imperative. We have to have our Status 
of Armed Forces Agreements, otherwise 
overseas operations would be out of the 
question. We have to go on the basis 
that we must know, for example, when 
you are sent abroad that you are not 
going to be subjected by a foreign 
government to an income tax every time 
you set foot on its soil. We have to have 
some rules established on a basis of 
reasonable expectations— the expecta- 
tions that states can obtain, regularly, 
recognition from others of their claims 
under international law. Such claims as 
do receive recognition are called rights. 
There is also the counterpart, namely, 
an acknowledgment by other states that 
if such rights are denied the injured 
state may take action to enforce them. 

So, in effect, we are saying that 
international law is like national law. 
You go to your lawyer to find out what 
you can claim— indeed get away with— 
and what you cannot claim, and what 
will be the consequences, often totally 
unperceived by the layman, of pressing 
legal or illegal claims. Thus international 
law, as all law, is concerned with ascer- 
taining and demonstrating in the light of 
practice those claims which can be 
pressed as rights without violating 
expectations established in the interna- 
tional arena and those which could be 
pressed only against the expectations of 
adversary states. Where a threat or an 
attempt is made in the international 
arena to deny a right, a secondary right 
arises for the injured state to undertake 
the enforcement of the primary right. 
This we did during the recent threat to 
freedom of navigation in the Red Sea by 
sending a CVA through after the genera- 
tion of the threat. 

Thus international law, the law of 
this world arena of adversary states, like 
all law has its sanctions, sanctions at 



times more efficacious than those 
enjoyed by national law. What is more, 
in this arena of relentless struggle, just 
as within the state itself, law is a 
condition of continued survival and a 
system for reconciling sharply com- 
petitive claims. 

I thus arrive at the core of the topic 
for this morning. If international law 
concerns the determination of those 
claims which, on the basis of expecta- 
tions in the international arena, have 
become enforceable rights and those 
claims which, because of failure to 
propagate effective expectations, cannot 
yet be enforced as rights, then the 
ultimate question must be: What are the 
fundamental claims and rights which 
international law enforces in the world 
arena? 

Now claims are meaningless unless 
attached to interests of which they 
constitute the authoritative representa- 
tion. But where claims have received 
recognition by generating expectations 
in the international arena, it must be 
that reciprocity of interests have pro- 
duced these expectations. Reciprocity, 
therefore, lies at the base of sanctions 
and state enforcement of international 
law. In consequence, our problem be- 
comes, in turn, that of identifying the 
reciprocal interests generating expecta- 
tions as to claims. 

It is at this point that I return to the 
first portion of my remarks where I 
stressed the deep-seated and all- 
pervasive dichotomy of claims and in- 
terests as between the great and the 
small states. At the same time we must 
remain aware of the inversion of power 
which effectively prevents the great 
powers from dismissing the interests and 
claims of the small states. The vast 
strength of the great powers alone 
suffices to propagate throughout the 
world arena expectations and recogni- 
tion of their claims. On the other hand, 
inversion of power provides fertile soil 
for the growth of expectations among 
great and small alike and recognition in 



29 



the world arena of the claims of the 
small states. 

It is obvious that the interests and 
claims which, for convenience, we may 
call the objectives of the great and of 
the small states in this vast dichotomy 
must be divergent. Yet, because of the 
inversion of power, divergence of objec- 
tives must be accepted in this world 
arena. 

What, then, are the respective objec- 
tives of the great and the small states? 

There are those who assert that 
objectives of all states constitute a vast 
spectrum running from "power," 
"wealth," "enlightenment," and 
"health," to "human dignity," "recti- 
tude," and "affection," whatever these 
terms could mean. Others talk of the 
"protective principle," "passive per- 
sonality," etc. However again, I think it 
important that we persist in getting 
down to ultimates within the context of 
this vast dichotomy. I would suggest, on 
the one hand, the interests and claims of 
the great powers proceed from an objec- 
tive or goal which is that of freedom of 
communications. These are interests and 
claims which, by and large, are mutually 
shared among them, which have propa- 
gated expectations in the international 
arena even on the part of the small 
states and which have, therefore, be- 
come rights under international law. On 
the other hand, the interest and claims 
of the small states proceed from an 
opposed objective or goal which is that 
of national security. These interests and 
claims and this objective are, by and 
large, mutually shared among the small 
states and through the inversion of 
power have received recognition in the 
international arena even on the part of 
the great powers. Indeed, the great 
powers themselves share this objective 
to a lesser degree. These interests, 
claims, and objectives have likewise be- 
come rights under international law. 

We are, therefore, faced in interna- 
tional law, as in national law, with a 
dichotomy or polarity as between the 



objectives of the great and the small 
states. Professor McDougal has lucidly 
pointed to this pervasive polarity to 
which he assigns the term "comple- 
mentarity," and which he illustrates by 
the polarity or complementarity in our 
own constitutional law between Federal 
and State rights. The rights of the 
Federal and the State Governments, 
although basically opposed, are, never- 
theless, both accepted in the national 
arena of competing rights and are, 
hence, complementary. In fact, they 
overlap to a degree. We have the same 
type of problem in the international 
arena, and, in fact, there is, as in 
national law, a shared complementarity. 

Let me start first with the middle- 
sized and small states and their concern 
with national security. They have few 
nationals abroad. They have few ships 
flying their flags on the high seas or in 
foreign ports. They have fewer national 
airlines operating abroad. Far from 
seeking additional air traffic rights 
abroad, they are primarily concerned 
with restricting the demands of foreign 
carriers to operate into and out of their 
national territories. Freedom of travel 
and communication is not their princi- 
pal preoccupation. 

Given their limited resources, their 
concern is largely with preserving their 
own territorial integrity, particularly 
those states which have just entered the 
world arena. And so to translate this 
phrase "national security" into another 
term more conveniently manageable by 
us throughout the course, we can talk 
about the objective (which includes the 
interests and claims) of "territorial juris- 
diction. " National security, in effect, 
can in most cases be squared to terri- 
torial jurisdiction. We will see that the 
states that do make such claims are 
largely concerned with three things: 
territorial integrity, including sanctity 
of frontiers; exclusive jurisdiction over 
all foreign nationals and interests on 
their territories; and political inde- 
pendence. In essence this means that the 



30 



objectives of national security cause 
these states to stress repeatedly the 
concept of "nonintervention." They do 
not care too much about what happens 
abroad. Having few nationals, ships, 
airlines, and other interests overseas, 
they are inevitably less upset with what 
happens to them than are the great 
powers who, on the contrary, have, 
relatively speaking, many nationals and 
interests subject to and hostages of the 
territorial jurisdiction of the small 
states. 

We see this concern with territorial 
jurisdiction reflected in many ways. The 
states newly emerged from colonial 
empires accept without protest inequit- 
able and unrealistic frontiers inherited 
from the colonial era lest they impair 
their own territorial integrity by seem- 
ing to redefine them. All the emerging 
states have come out for the principle of 
self-determination at the United Nations 
in terms of the achievement of inde- 
pendence. But once they have obtained 
their independence, they are quite as 
resolutely opposed to that same princi- 
ple. They protest that it flies in the face 
of their own territorial integrity. Look 
at the declared position of the newly 
emerged African states, Congo and 
Nigeria in particular, and of the Organi- 
zation of African Unity when con- 
fronted by secession movements based 
on local internal self-determination. 

Territorial jurisdiction finds perhaps 
its most striking manifestation when 
applied to the territorial or marginal 
seas. By and large, an inverse ratio is 
involved. The smaller the navy of a 
state, the smaller its merchant marine, 
the wider its territorial water claims— in 
some cases in excess of 200 miles. This 
claim of territorial jurisdiction runs 
counter to the objective of the great 
powers which is freedom of communica- 
tions, including freedom of navigation. 
As I will have occasion later to point 
out, the 3-mile limit is not an obsolete 
concept despite its venerable origins— far 
from it. Quite obviously, extension of 



territorial waters can only be at the 
expense of freedom of navigation, par- 
ticularly in those nearly 200 critical 
areas of the world constituted by inter- 
national straits. Were the 3-mile limit 
doubled to 6 miles, over three-fourths 
of those straits would become territorial 
waters, and were that distance, in turn, 
doubled to 12 miles, as is the claims of 
many states today including the Soviet 
Union, all of the international straits 
would become territorial waters. The 
recent Vilkitski Straits incident involv- 
ing two U.S. icebreakers demonstrates a 
dimension of the problem. In this situa- 
tion the only right under international 
law left to protect the objective of 
freedom of communication is that of 
innocent passage, and yet innocent 
passage is itself subject to the objectives 
of national security and territorial juris- 
diction. Article 14 of the Geneva Con- 
vention of 1958 on Territorial Waters 
declares that passage is not innocent if it 
is prejudicial to the security of the 
coastal state. This is, of course, an 
illustration of the objective of national 
security and the principle of territorial 
jursdiction. 

But let us not delude ourselves. In 
certain respects, to the extent that they 
too have their areas of vulnerability, 
even the great powers are concerned 
with territorial jurisdiction. For ex- 
ample, the Soviet Union, whose navy 
and merchant marine have only in re- 
cent years attained considerable propor- 
tions and which, outside the satellite 
states, has few nationals or interests 
abroad, has long espoused the territorial 
jurisdiction approach, including a claim 
for wide territorial waters. Specifically, 
Khrushchev, in the famous 31 Decem- 
ber 1960 speech, and Kosygin, in his 19 
June address of this year at the United 
Nations, came out for territorial in- 
tegrity and sacredness of frontiers with 
specific application to the frontiers of 
East Germany and the satellite coun- 
tries. Kosygin is also concerned at do- 
fending the immutability of the 



31 



frontiers with China established under 
the Tsarist Regime. 

And the United States. We have also 
areas of vulnerability where we invoke 
territorial jurisdiction— for example, 
Berlin. We cannot conceivably resort to 
a nuclear exchange with the Soviets over 
Berlin. Consequently, we have anchored 
our position on territorial jurisdiction— 
specifically our territorial rights as an 
occupying power. Had we not had this 
legal argument available to us, we would 
have been subjected to even further 
applications of the "salami" tactics 
which have plagued our position with 
regard to access to Berlin. International 
law has been our shield in a scenario of 
nuclear stalemate. 

But the United States also in other 
areas finds itself vulnerable. For ex- 
ample: our fishing industry is far from 
being dominant in the world today. The 
result is that although we come out 
fully for the freedom of the seas and the 
narrowest possible territorial waters, we 
enacted, in November of last year, 
legislation extending to 12 miles the 
belt of waters reserved exclusively for 
U.S. fishing interests. 

I now turn to the objectives, claims, 
and interests of the great powers. 

The concept of territorial jurisdiction 
favored by the small states has been 
under increasing attack in recent years 
by those great powers who tend to favor 
the competing form of jurisdiction 
based on the objective of freedom of 
communication and which we can trans- 
late into the term "nationality jurisdic- 
tion." Jurisdiction based on nationality 
reflects the claims, interests, and objec- 
tives of those great powers which have 
many nationals abroad, many naval 
forces on the high seas, many merchant 
ships under their flags, many airlines 
and aircraft operating abroad under 
their jurisdiction, responsibility, and 
protection, as well as many investments 
abroad. To meet such responsibilities 
abroad, a continuing link of nationality 
is indispensable. These great powers 



extol less than do the small states the 
virtues of nonintervention and are more 
interested in protecting, under a juris- 
diction based on nationality, the free 
movement of their nationals, ships, air- 
craft, and investments. 

Let me offer you, first, an extreme 
example of this type of jurisdiction. It 
would seem normal that an American 
could go to Italy and conclude a con- 
tract with the Italian Government grant- 
ing him exclusive rights in Italy for the 
marketing of American farm equipment. 
Yet, such is not the case. The U.S. 
Government would reach out through 
the arm of nationality to declare that 
the American, even abroad, would be 
violating our antitrust legislation and 
would be liable to criminal prosecution 
and penalties in the States. 

This concern with the objective of 
freedom of communications and juris- 
diction based on nationality finds its 
clearest expression in respect of 
freedom of navigation on the high seas. 
We demand the right to move through- 
out the world with the narrowest pos- 
sible restrictions on freedom of the seas. 
Indeed, we even claim that freedom of 
communications is a form of national 
security for us. We find it advantageous 
that our surface vessels and our aircraft 
should be able to move for surveillance 
and other purposes, including national 
defense, up to the 3-mile limit rather 
than be held off at the 12-mile limit off 
the shores of other states as the RB-47 
incident in the White Sea of a decade 
ago illustrated. 

The United States is not alone in 
stressing freedom of communications 
and nationality jurisdiction. Of course a 
state like Japan, with its large fishing 
fleet and merchant marine, by and large, 
follows the same general approach to 
problems of international law. I would 
suggest, finally, on this point, that the 
Soviets with the growth in their sea- 
power and merchant marine might 
possibly be evolving gradually from ter- 
ritorial jurisdiction based on the 



32 



objective of national security to na- 
tionality jurisdiction based on the objec- 
tive of freedom of communications. 
Perhaps the word "communications" 
might eventually come to take on the 
additional meanings that strategists such 
as Professors Kissinger and Schelling 
impute to it within the context of 
communications between nuclear an- 
tagonists. 

So this is the clash between the two 
forms of jurisdiction— the one pursued 
by the small states and based on terri- 
tory, the other the objective of the great 
powers, namely, freedom of communi- 
cation and based on nationality. 

I wish, in the closing minutes of this 
introduction to international law, to 
illustrate this confrontation between 
and the complementarity of rights of 
the great and the small states under 
international law by turning to the 
current crisis in the Middle East. 

You may remember that in 1957, 
after the 1956 crisis, the United Nations 
established two UNEF posts in U.A.R. 
territory at Sharm of Sheikh and at Ras 
Nasrani on the Sinai Peninsula near the 
Straits of Tiran and the Gulf of Aqaba 
at a distance of more than 90 miles 
from the frontier between the U.A.R. 
and Israel. The purpose was to dissuade 
the U.A.R. from reinstituting its block- 
ade of the Straits of Tiran and the Gulf 
of Aqaba and to reaffirm the principles 
of freedom of the seas and of innocent 
passage. By so doing, the United Na- 
tions was demonstrating the importance 
which it attached to assuring freedom of 
communications and freedom of passage 
through the Straits of Tiran and the 
Gulf of Aqaba. The removal of these 
two U.N. posts at Nasser's insistence in 
May of this year constituted, therefore, 
an immediate and direct threat to the 
very principle of freedom of communi- 
cations which had led to their establish- 
ment a decade ago. Accordingly, on the 
26th of May, U-Thant delivered a 
memorandum to President Nasser point- 
ing out that this demand would have the 



most destructive effect possible on 
peace in the Middle East. 

Three days before that, President 
Johnson had made a statement on the 
same point, declaring the right of free 
innocent passage on the international 
waterways is a vital interest of the 
international community. (I see that 
others prefer the term "world com- 
munity" to "world arena.") There 
emerged, in consequence, a confronta- 
tion between the demands of the 
U.A.R. for national security and those 
of the United States for freedom of 
navigation. The passage through the 
Straits was clearly within U.A.R. terri- 
torial waters since the only navigable 
channel, that between the Sinai Penin- 
sula and the Island of Tiran, is but 
1-mile wide. The sole exception to 
territorial jurisdiction here would be 
under the international law privilege of 
innocent passage. On this point the 
U.A.R. argued, among other things, that 
the passage of vessels through the Straits 
would, under article 14 of the Geneva 
Convention that I have mentioned, be 
prejudicial to the security of the coastal 
state. 

The problem was raised before the 
Security Council, and after a pre- 
liminary period of sparring, the debate 
was initiated by none other than the 
U.A.R. Representative who delivered a 
searching legal analysis of the problem. 
This speech has been somewhat played 
down by the American press, fascinated 
and awed as it has been by the rhetoric 
and logic of the Israeli Foreign Minister, 
Abba Eban. But the entire address, 
many pages long, was a juridical analysis 
which, in turn, launched a juridical 
dispute that lasted for days. 

It is true that this protracted dispute 
concerned freedom of navigation 
through straits through which passed 
only 7 percent of Israel's seaborne 
commerce. However, by the admissions 
of both sides, deeper issues and prece- 
dents of international law were in- 
volved—the confrontations between the 



33 



two legitimate objectives of national 
security, which U-Thant conceded to 
the U.A.R., and of freedom of com- 
munications. These issues could not be 
avoided. The United States was con- 
cerned lest a flagging in the resolve to 
defend the latter might comport serious 
precedents for other more important 
international straits. For example, just 
as the U.A.R. claims that the Gulf of 
Aqaba is an historic bay which can be 
closed to all but the coastal powers 
(from which it excludes Israel), so the 
Soviet Union argues that the Baltic 
should be considered a closed sea to 
which access can be had only through 
the mile-wide Straits of Skagerrak. Even 
without that claim the Soviet Union 
could bring pressure to bear in Denmark 
and Sweden to deny innocent passage 
on the grounds that such passage could 
be prejudicial to the security of the 
Soviet Union which, in turn, could 
cause them misgivings as to their own 
national security. 

Following the outbreak of hostilities 
and the stalemate in the Security Coun- 
cil, the problem was handed over to the 
General Assembly. This time most of 
the debates turned on the highly legal- 
istic claim of belligerency advanced by 
the U.A.R. which declared that since 
1947 it had remained at war with Israel. 
The purpose of the claim was to justify 
the blockade of the Straits and the Gulf 
and to disclaim responsibility for any 
new aggression by such a blockade since 
the U.A.R. and Israel had, since 1947, 
been at war. It was even argued that the 
United States, which had "blockaded" 
Cuba in 1962 without claiming belliger- 
ency, was scarcely in a position to 
object to a blockade imposed by a state 
such as the U.A.R. which had been 
frank in invoking its rights under inter- 
national law as a belligerent. Thus, in 
the Security Council the line of battle 
was drawn between the rules of interna- 
tional law relating to territorial integrity 
and those concerning freedom of the 
seas. In the General Assembly the ulti- 



mate issue was whether or not freedom 
of the seas was to be restricted by the 
rights of a belligerent under interna- 
tional law. As you may recall, that body 
failed to reach a solution precisely 
because of the demands of the Arab 
State to retain the rights of belligerents 
and the insistence of the Western World 
upon their rights under international 
law for freedom of the seas. 

Now in this situation some of you 
may say, "Well, does not this all prove 
that international law is doing us a 
disservice in such a situation? Far from 
providing it has stultified a solution of 
the problem. " 

In response, I would remark, first, 
that you are possibly attributing a more 
decisive role to international law in that 
situation than do the lawyers them- 
selves. It is doubtful that international 
law could claim so crucial an influence 
in frustrating a settlement, if, indeed, 
that was its objective. However, the fact 
that the vocabulary and the discussion 
of issues of international law clearly 
dominated all the debates at both the 
Security Council and the General 
Assembly validates two conclusions. 
One is the importance of becoming 
familiar with the sophisticated dialogue 
and terminology of international law, if 
one is to gain a comprehension of the 
critical events and movements on the 
world scene today. The other conclu- 
sion is that preoccupation with the legal 
issues demonstrated that international 
law is deeply concerned with the ulti- 
mate problems of our time, whereas, the 
proliferation of political issues— and 
there were many of them transpiercing 
this crisis— in the end tend to cancel 
each other out. Concerned as it is with 
the two equally valid objectives of 
national security and freedom of com- 
munications, international law can, in 
the end, offer a valid and sophisticated 
balance between competing national in- 
terests, claims, and objectives, not only 
in terms of the struggle between Israel 
and the Arab States, but also in its 



34 



implications for other areas of the 
world. 

These, gentlemen, are some of the 
problems that in the course of the 
coming lectures we will be examining 



and pondering. It is my hope that you 
may come away from them with a 
sharper and, I would venture to suggest, 
deeper insight into some of the issues 
that are troubling our times. 



t 



35 



WHAT IS INTERNATIONAL LAW? 



James F. Hogg 



The words "international law" are 
apt to draw a wry smile from the man in 
the street-and our present involvement 
in Vietnam merely gives more twist to 
the smile which would have been there 
before. To the layman, to the reader of 
newspapers and reporters of interna- 
tional events, international law conjures 
up a mature legal system- one in which 
an established legislature makes laws, an 
executive carries them out, a judiciary 
presides over trials of persons charged 
with infractions of those laws, and a 
sheriff stands ready to place a convicted 
violator in jail and keep him there. The 
layman knows that no such system or 
its counterpart exists in the interna- 
tional arena, controlling the relation- 
ships between states. He is reminded 
almost daily of the essentially lawless 
behavior of certain states in the interna- 
tional community, and accordingly (and 
for this purpose this probably means 
most of you in the audience) he comes 
to think of international law as a lot of 
words and academic concepts and argu- 
ments unrelated to the realities of world 
forces and power politics. He tends to 
dismiss this material as having no signifi- 
cant effect or impact, as providing no 



significant assistance towards or guaran- 
tee of peace, or of a context in which 
the individual states can go about the 
business of government. He thinks of 
international relations basically as a 
function or problem in the exercise of 
power, and in comparative power, with 
spheres of particular interest or influ- 
ence. 

One of the objectives of this study is 
to suggest to you that such a layman's 
view may be somewhat out of focus, 
and that military planning and strategy 
demand an understanding and apprecia- 
tion of the real strengths and utility of 
international law as well as of its real 
weaknesses and shortcomings. 

But, as a preliminary step to embark- 
ing on any analysis of international law, 
it is necessary to establish what it is not. 
When we think of a legal system (and 
the words "international law" suggest a 
reference to such a system), we are 
almost certain to borrow from the legal 
system we know and project it as far as 
possible into the next context. The 
essential flaw in a layman's approach to 
an appreciation of international law 
frequently lies in such an extension. The 
legal system we know constitutes the 



36 



backbone of our society, and without it 
none of us would have any security or 
freedom of person or of property. Per- 
sonal freedom would be meaningless 
and property would be useless to us 
without a system of protection and 
vindication of our rights. The existence 
of a mechanism for vindication pre- 
supposes a tribunal with authority to 
adjudicate the existence and extent of 
such rights as well as of a system for 
enforcement of any rulings made by 
such a tribunal. It usually is said that 
the maturity of a society, and the rod 
for measuring the progress made from 
the primitive state, is found in its legal 
system and its operational efficacy. 
What comparable institutions currently 
exist in the international arena? 

There is no organization comparable 
to the Congress having substantial legis- 
lative competence with right to pass 
laws binding upon the individual states 
of the world. And we are a long way 
from the type of international con- 
sensus or common ground which would 
constitute a necessary prerequisite for 
the creation of any such organization. 
Just ask yourselves how much agree- 
ment it would be possible to master 
among states at the present time on 
such an organization's authority to legis- 
late on allocation of world resources 
and materials, including water, distribu- 
tion of population surpluses, and food- 
stuffs. The present chances of a signifi- 
cant number of states agreeing to confer 
such legislative authority on an interna- 
tional organization must be slight in- 
deed. The European Community, or 
Common Market, represents a remark- 
able step in that direction taken by the 
six West European states involved. But 
the successes as well as the difficulties 
of that union indicate the scope of the 
problems confronting efforts to extend 
further such a union. 

How does the United Nations com- 
pare to an international legislature? 
Some critics of our participation in the 
United Nations have charged that our 



membership in and adherence to that 
organization amount to giving up na- 
tional sovereignty and control in signifi- 
cant areas. Were that charge true, then 
the United Nations might be, at the 
present time, a form of international 
legislature of limited authority -but it is 
not. In ratifying the Charter of the 
United Nations, we undertook to con- 
form our conduct to the standards and 
requirements of that landmark treaty, 
but it does not commit us to acceptance 
of binding decisions in significant areas 
without our own future consent. The 
authority of the General Assembly, at 
least as illustrated by the 20 years of its 
practice, is advisory rather than binding. 
Actions such as the U.N. intervention in 
the Congo might suggest a greater 
authority, but reflection will suggest 
that participation by the states supply- 
ing troops was dependent on their indi- 
vidual willingness to do so. In an ad- 
visory opinion in 1962, the Interna- 
tional Court of Justice rules that other 
members of the United Nations were 
obliged to contribute their rated share 
to the cost of such operations. Subse- 
quent political decision in the As- 
sembly, however, has undercut the judg- 
ment handed down by the Court; it 
would seem that a political compromise 
has been achieved falling short of ad- 
herence to any compulsory duty to 
contribute in such a case. 

The Security Council, on the other 
hand, is provided with authority to 
hand down binding rulings in certain 
limited situations. On paper, this au- 
thority of the Security Council appears 
to give it limited legislative competence. 
In practice, the well-known veto power 
insisted on by the Russians (and equally 
essential to original participation by the 
other great powers), reduces that bind- 
ing authority to nearly zero so far as the 
five powers with a veto are concerned. 
For states other than the big five, it 
might be thought that the Security 
Council possesses significant legislative 
authority. In fact, international disputes 



37 



involve two or more parties -it usually 
takes two to tango. This being the case, 
the likelihood of both or all participants 
finding a friend among the veto powers 
is rather substantial. 

For these reasons, in terms of a 
realistic appraisal, we cannot regard the 
United Nations as having significant 
obligatory legislative authority. We are 
parties to a variety of other treaties 
which create organizations with special 
limited authority to make binding rules. 
But the limit of competence of these 
organizations is specialized and narrow, 
not touching the major issues of interna- 
tional peace. 

Just as there is no real international 
counterpart for Congress, so there is no 
real international counterpart for our 
courts or judicial and law enforcement 
system. The International Court of 
Justice is a unique institution. If I wish 
to sue my neighbor because he damaged 
my property, I can invoke the assistance 
of a court without his consenting to be 
sued by me in that court. This is not so 
with the International Court. In suits 
between individual states, the ICJ au- 
thority is dependent upon agreement by 
both or all parties that the Court hear 
the case. The Statute of the Court 
makes provision for states to indicate in 
advance of any particular dispute that 
they accept the compulsory jurisdiction 
of the Court. Most such acceptances, 
however, have been rather carefully 
qualified by the states filing them. Thus, 
in the celebrated Connolly amendment 
to the United States declaration con- 
cerning the jurisdiction of the Court, it 
is provided that the United States re- 
serves the right itself to decide whether 
certain types of suit are within or 
outside the jurisdiction of the Court. 
This gives us in many cases the ability to 
decide, after suit has been brought, 
whether we will allow it to continue. 
Pretty smart, you say. Well, unfortu- 
nately, this means that if we wish to sue 
any other country in that Court, it gets 
the benefit of a similar veto over the 



Court's jurisdiction. If the United States 
is not prepared to make a more general 
commitment to the authority of the 
International Court, it goes without 
saying that a number of other states are 
prepared even less. 

True, the International Court does 
have another kind of jurisdiction: its 
so-called advisory jurisdiction. The 
General Assembly, the Security Council, 
and certain other organs of the United 
Nations can ask the Court for an 
opinion on an allegedly hypothetical 
question. The Court's opinion on 
whether the Soviet Union and other 
countries were obligated to contribute 
towards the cost of the Middle East and 
Congo operations came before the 
Court under this authority. The opinion 
given under such jurisdiction is advisory 
in name as well as in political reality; 
the organ requesting it is not bound to 
follow it, nor are the individual states. 

In sum, it is clear that in the interna- 
tional context not only is there no 
substantial counterpart to the Congress, 
but also there is no substantial counter- 
part to our judicial system. How then 
can we speak of a subject called "inter- 
national law"? Austin once defined law 
as the command of a sovereign. By this 
he meant that before you could have 
law you must have a body with au- 
thority to make law or rules of conduct, 
and, in addition, you must have the 
machinery necessary to enforce those 
rules when they are made. Clearly, in 
the Austinian sense, we have no such 
thing as international law. What, then, 
do we have, and why is it called 
"international law"? 

To work towards answers to these 
questions, it is necessary to go back to 
our domestic concept of a legal system. 
We have laws prohibiting one person 
from assaulting another or taking his 
property by force. We have laws requir- 
ing automobiles to be driven according 
to specified requirements. The existence 
of these laws does not guarantee that 
certain individuals will not break them 



38 



and thereby expose themselves to prose- 
cution. For most of us under most 
circumstances, however, what is im- 
portant in terms of the way we live our 
everyday lives is that most people do 
obey the requirements of these laws. 
Most people do drive on the right side 
of the road (with the notable exception 
of the English) and most people do not 
assault others or attempt to take their 
property away by force. If a significant 
number of the people in this country 
began to violate these laws steadily, our 
system of order would break down, 
notwithstanding the backup threat of 
prosecution of the violators. Laws or 
rules are significant in our daily lives, 
therefore, because we safely can predict 
that others will obey them, and we can 
plan our own actions and lives on the 
premise that they will be broadly 
obeyed. For these reasons, one school 
of thought defines law as a system of 
rules and orders for the mutual benefit 
of the members of society, which rules 
and orders are generally followed and 
obeyed. In this sense, we have a signifi- 
cant amount of international law but it 
is of the utmost importance to hear in 
mind that the reason why there is 
habitual behavior consistent with the 
rules is mutual benefit and not the 
threat of a policeman or a sheriff. You 
have the international rules of naviga- 
tion—what would happen to navigation 
of shipping without habitual observance 
of those rules? If you think of interna- 
tional law as that body of custom and 
experience which has grown up or 
evolved from consideration of regula- 
tion required for the common benefit 
and estimate the strength of any par- 
ticular rule in any particular case in 
terms of the reciprocal interest of the 
other state or states in maintaining 
adherence to that rule, you will come 
closer to an understanding and apprecia- 
tion of what international law means, to 
what extent it can be relied upon, and 
to what extent it must be taken into 
account in planning action or strategy. 



If, at the same time, you bear in mind 
the old adage about the importance of 
acting consistently, you will come even 
closer. If the United States takes the 
position today that the rule of conduct 
in a particular situation is one thing, and 
tomorrow takes an entirely different 
and possibly inconsistent position from 
that taken the day before, you can see 
easily that other states are less likely to 
be prepared to follow or accept either 
yesterday's statement of the rule or 
today's statement of them. The im- 
portance of acting consistently, there- 
fore, requires each state in any particu- 
lar situation to think not only of the 
immediate problem and what might be 
done with it, but also to think of the 
precedent (as lawyers call it) which any 
particular action might create. In ana- 
lyzing action in any particular situation, 
it is most important to put ourselves in 
the shoes of the other state or states 
involved, and then ask how the particu- 
lar rule we urge might be used by them 
in another context. Let me give you an 
illustration. If we claim that it is per- 
missible to stop shipping on the high 
seas to see whether arms are being 
carried to the Viet Cong aboard the 
vessels stopped, what happens if the 
Russians claim to have a reciprocal right 
to stop our shipping in the Caribbean 
area to see whether it is carrying sup- 
plies usable by revolutionaries seeking 
the overthrow of the Castro regime? It 
is difficult obviously for us to assert a 
right to stop and search shipping on the 
high seas for particular purposes with- 
out according a similar right in similar 
situations to other states. This element 
in analysis we sometimes call mutuality 
or reciprocity, and, if you stop to think 
for a moment, you can see that a similar 
concept underlies many of our own 
everday dealings. 

The importance and significance of 
this element of reciprocity or mutuality 
in international affairs is seen most 
easily in the more mundane transactions 
and events of everyday affairs. Suppose 



39 



that a U.S. corporation is thinking of 
establishing a fairly large business in 
Venezuela or Brazil, of building a fac- 
tory, of establishing a stock of merchan- 
dise for sale and distribution from there 
through other Latin-American coun- 
tries. Among the things it must consider 
are the following: Can it get permission 
to come in? Will its personnel be 
allowed to enter and leave the country 
and travel freely? Will their lives and 
safety be assured? Will the company's 
capital investment be fairly protected? 
And, nowadays, will a fair method of 
taxation be used and applied both to 
the corporation and its personnel by the 
host state? American companies are 
going abroad every day and setting up 
such establishments precisely because 
rather precise rules of international law 
apply to regulate the rights and duties 
of the corporation and the rights and 
duties of the host country. The element 
of mutuality and reciprocal interest for 
the host country as well as for the 
United States is clear. 

What, then, is the source of interna- 
tional law which provides this measure 
of assurance and predictability? If there 
is no international legislature, where 
does this law come from and how is its 
content ascertained? The answer is from 
at least two more or less distinct 
sources: treaties or agreements entered 
into between states, and the so-called 
general, customary, or "common" inter- 
national law. 

Customary international law claims 
to be a distillation of the experience of 
states over at least the last 500 years. It 
purports to have as its core or basis 
those practices, those rules, which have 
been observed and followed habitually 
by states in their dealings with other 
states. Now you will notice that in 
talking about international law, I am 
talking about a state dealing with an- 
other state. I am not talking about an 
individual of one state dealing with an 
individual of another state, and there is 
a reason for this. International law says 



(right or wrong and for whatever rea- 
son) that this whole body of learning 
has to do with the relationships between 
states, not between individuals. This 
approach is beginning to break down, 
but at least the historical material em- 
phasizes heavily, just as the Interna- 
tional Court Statute emphasizes, that 
the parties who are concerned with 
international law are the states of this 
world, not their individual citizens as 
such. 

Let me give you a couple of illustra- 
tions of rules of customary international 
law. Castro broke one of them in 
confiscating American property in 
Cuba. There is a rule of general interna- 
tional law which states that it is unlaw- 
ful to take someone's property without 
paying just compensation for it. There is 
another standard which says (these are 
generalizations, the rules are more 
precise than this) that a state is required 
to provide minimum acceptable levels of 
protection for visiting aliens-not less 
than national standards, and sometimes 
more. 

Now you may think this pretty 
nebulous stuff: states change, govern- 
ments change, and governmental atti- 
tudes to these rules doubtless change, 
too. As a matter of fact, one of the 
biggest problems at the present time is 
that many of the new nations do not 
think very highly of many of the stand- 
ards established by the older nations, 
primarily from western Europe. A con- 
siderable argument is going on con- 
cerning just how sound and how good 
and how reliable for purposes of predic- 
tion some of these rules of international 
law are. But one of the interesting 
features of customary international law 
is the flexibility that it has. 

Now, as you know, many of the rules 
of law which govern your everyday 
lives -for instance, the law which 
governs your protection against people 
negligently injuring you -are general 
rules not to be found in statutes at all. 
They are found in the decisions of 



40 



courts, built up into a consistent body 
of practice through case-by-case adjudi- 
cation. They are an important part of 
our domestic legal system and provde 
some analogy for customary interna- 
tional law. 

The second, and probably the far 
more important source of international 
law rules, is the treaties or agreements 
which states make. The United States is 
a party to some 6,000 treaties with the 
other countries of the world. These 
treaties, of which the U.N. Charter is 
one, run the gamut from broad political 
treaties, including military defense 
agreements, through trade and com- 
merce treaties, through tax agreements, 
to agreements fixing the size and nature 
of visiting military missions. Obviously, 
these treaties are of greatly varying 
importance to our national interest. 
Less obviously, but equally clearly, 
these treaties are negotiated and worded 
with widely differing standards of pre- 
cision and clarity of meaning. A treaty 
establishing the appropriate taxing 
power of the two countries party to it 
can be expected to be drawn with 
technical precision and detail. A politi- 
cal treaty expressing friendship between 
two countries and suggesting that they 
will take a common view and common 
policy in matters of military action and 
defense will use broad and nebulous 
standards. And, if you have any ques- 
tion, look at the language of the SEATO 
treaty and the statements there about 
the circumstances under which one 
party may come to the defense of 
another. 

In other words, some kinds of 
treaties establish a relatively clear and 
definite list of rights and duties for both 
or all parties, and the statement leaves 
little room for interpretation or dif- 
ference of opinion about the scope and 
extent of those rights and duties. Others 
are deliberately framed in language so 
general as in reality to create no rights 
or duties. 

Where, in this scale of things, does 



the U.N. Charter fall? Article 51 of the 
Charter provides that: 

Nothing in the present Charter 
shall impair the inherent right of 
individual or collective self- 
defense if an armed attack occurs 
against a Member of the United 
Nations, until the Security Coun- 
cil has taken the measures neces- 
sary to maintain international 
peace and security. . . . 
Our position in Vietnam is, in part, 
premised on this article ; we are engaging 
in collective self-defense of the Republic 
of Vietnam against external aggression. 
But the Communist countries take a 
different view of the meaning of this 
article, as do some writers and speakers 
in this country, including some of those 
critical of our current policies. In the 
event of disagreement over the meaning 
of article 51 , where do we go to find the 
"true" meaning of the Charter? If you 
and I sign a contract for the sale of my 
house to you, and we disagree as to the 
meaning of one of its terms, we go to 
court to find out which of us is right. In 
the absence of an International Court 
with binding jurisdiction, where do we 
go for an authoritative interpretation of 
our treaty commitments? Are we forced 
to the conclusion that our 6,000-odd 
treaties and agreements are useless be- 
cause there is no tribunal with compul- 
sory jurisdiction to interpret and apply 
them? Common sense suggests the 
answer is no-otherwise, why would our 
State Department so sedulously go 
about negotiating new ones, like the 
Test Ban Treaty? 

Once again, the answer comes back 
to practicalities and not theoretical 
possibilities. In everyday international 
life, states usually, and in fact almost 
invariably, keep those treaty commit- 
ments of the kind which get framed 
with some degree of precision. And the 
reason is clearly one of mutual interest. 
Cuba violated treaties as well as cus- 
tomary law in confiscating American 
property interests without compen- 



41 



sation. She is paying the price by 
finding out how difficult it is for her 
now to get development capital. 

But it must be realized that as the 
subject matter of a given treaty ap- 
proaches more nearly to the vital inter- 
ests of a country, so increases the 
unwillingness of the country to make a 
precise binding commitment for the 
future, and so increases the danger of 
any commitment receiving a forced in- 
terpretation to suit the particular tastes 
of the interpreter. The degree of se- 
curity, certainty and predictability 
found in commercial matters between 
states on friendly terms diminishes 
sharply when the treaty is one between 
less friendly states and involves more 
vital interests or subject matter. Many 
of the commitments set forth in the 
U.N. Charter do involve vital national 
interests. Accordingly, competing and 
divergent interpretations frequently 
are urged as to the nature and content 
of those obligations. The issues creating 
the problems of interpretation are more 
apt to arise between relatively hostile 
states or groups of states so that the 
factors of mutuality and reciprocity are 
likely to be minimized. Threats or acts 
of reprisal by the Russians are unlikely 
to influence our action or interpretation 
of a particular Charter provision. The 
quid pro quo or mutuality is here 
hardest to see. In this context of diver- 
gent claims and interpretations of the 
Charter, what good does law or legal 
interpretation of the Charter as a treaty 
do us? Does the Charter have any real 
meaning, any real significance, if the 
different protagonists can interpret it to 
suit themselves? 

Let me illustrate this problem. In 
1956, an Emergency Force for the 
Middle East was set up pursuant to U.N. 
resolutions. In 1960, a somewhat similar 
force was dispatched to the Congo 
likewise pursuant to U.N. resolutions. 
The Soviet Union refused to make any 
contribution to the large costs of either 
force as did a number of other U.N. 



members. France refused to pay a nickel 
towards the costs of the Congo opera- 
tion. The U.S.S.R. gave as its reason 
that these forces were constituted ille- 
gally, since only the Security Council 
had authority to use force or direct the 
use of force and only the Security 
Council had authority to allocate any 
consequent expenses. We advanced the 
legal argument that article 17 of the 
Charter gave the General Assembly the 
necessary authority to, in effect, tax the 
members to cover the costs of these 
operations. Here, then, you had the 
interesting situation of both the United 
States and the Soviet Union earnestly 
advancing and pressing detailed legal 
arguments as to the meaning of the 
charter. Why should either, why should 
both have been concerned to advance 
arguments of this sort? What did either 
hope to gain or stand to gain? Eventu- 
ally, the General Assembly, by majority 
vote, requested the advisory opinion of 
the International Court on this issue. 
What was the supposed object of this 
move? Who would stand to gain from 
such an opinion, whichever way it 
went? The Court finally decided by a 
9-5 majority that our interpretation was 
correct. Who, then, gained from this 
decision? As far as I know, the Russians 
still have to pay their first nickel 
towards the costs of those operations. 
In problems of this importance and 
complexity, affecting vital national in- 
terests, the answer appears to be that a 
complicated game of chess is being 
played. Obviously, both sides feel that 
something is to be gained by making as 
persuasive an argument as possible; obvi- 
ously, both feel that there is a market to 
be persuaded; obviously, both see goals 
or objects the attainment of which 
merits investing in the best available 
legal argument in order to maximize the 
persuasiveness of their particular posi- 
tion. And, yet, this species of psycho- 
logical warfare leaves the layman or 
newspaper reader somewhat confused. 
He clings tenaciously to the belief or 



42 



hope that law, treaties, and the meaning 
of treaty commitments are immutables 
of fixed, definite, and precise meaning. 
That hope or belief is just as false in the 
international arena as it is in the domes- 
tic arena, as illustrated by some of the 
landmark disputes of recent years which 
tested the meaning of our own Constitu- 
tion. 

In the context of Vietnam, this 
aspect of psychological warfare is being 
played and played hard by both sides. It 
is being played hard by forces of differ- 
ing viewpoints right within this very 
United States, as you all know. And so 
you are apt to conclude: this is a 
business for experts, for legal officers of 
senior rank responsible for advising our 
government and the President. What 
does it have to do with the military 
officer, even of most senior rank? 

The answer to that question varies 
through something like the same spec- 
trum as treaties vary, as I suggested 
earlier. Rather clearly, it is a matter of 
interest but not of professional responsi- 
bility for the senior military officer to 
be well informed about the legal basis of 
our position in Vietnam. The Legal 
Adviser to the State Department has 
issued a lengthy paper on that subject 
which may provide guidance. The mili- 
tary officer is entitled to rely on the 
task being done well by that office. But 
suppose that the question is: May I or 
should I, as commanding officer of a 
destroyer, intercept shipping on the 
high seas destined, as I believe, for the 
Viet Cong? Here, you may say, there is 
another answer available to relieve the 
commanding officer. Either the problem 
may be covered by orders, issued from 
above, or such orders may be obtained 
quickly by single sideband. Once again, 
someone with authority and legal ex- 
perience will have considered the inter- 
national law problems, if any, and will 
have supplied adequate guidance for the 
destroyer skipper. The large element of 
truth in this last answer cannot be 
denied. The problems of a commanding 



officer which can be foreseen in advance 
are fairly easily answered by preestab- 
lished orders or guidelines. Trouble is 
apt to come, however, in those situa- 
tions which have not been foreseen, or 
are not covered in orders, or as to which 
a measure of discretion (large or nar- 
row) is left within the orders. In this 
context, as in any other executive situa- 
tion, the officer or person charged with 
carrying out policy or orders must have 
some substantial appreciation of the 
policy underlying his orders in order to 
be in a position to implement them as 
well as possible. And the skipper here, 
as in other situations, has little room for 
error. As commander of a commissioned 
naval vessel, his acts may engage directly 
the responsibility of the United States 
whether or not his actions are within or 
beyond the scope of his orders. Failure 
to act may be just as bad as acting too 
vigorously, particularly in circumstances 
in which, under Navy Regulations, he is 
charged with the duty of protecting 
American lives and commercial in- 
terests. But this, and other provisions of 
Navy Regulations, would seem to re- 
quire the skipper to be a "sealawyer." 
Confronted with what may seem an 
impossible burden requiring legal skills 
you have not received, you may throw 
up your hands. You may regard these 
regulations as a basis for charging a 
scapegoat if the necessity for finding 
one arises. There may be a scintilla of 
truth in both these propositions. Cer- 
tainly, no one imagines that you can be 
given a serious foundation in the sub- 
stantive content of international law in 
the course of this seven-day study. 
Former classes have experienced a 
measure of frustration over this-some 
have felt that the instructors and the 
College have presented international law 
as something which the officer is re- 
quired, by appropriate regulations, to 
have a working knowledge of, and yet 
he cannot possibly obtain that knowl- 
edge from the brief time allotted to its 
study. The consultants who have come 



43 



for this program, in government service 
and academics both, have invested a 
goodly number of years in studying this 
material. You, as classes before you 
have discovered, will find that they have 
a great fondness for argument and little 
comparable fondness for clear and 
direct answers. Blame this on their legal 
training and experience. But do not go 
away thinking that the uncertainties, 
the doubts, and the large scope for 
argument make this subject a matter of 
debate only. It is quite unrealistic to 
suppose that, in the space of this short 
study, you can become international 
lawyers; and you should not be dis- 
concerted when, at its end, you decide 
that you have mastered little, if any, of 
the substance of international law. 

What you should derive from this 
study is an introduction or background, 
a viewpoint or perspective, of what 
international law is all about, how it can 
affect and does affect national policy, 
the kinds of influence it can exert on 
policy and strategy ^ and some feel for 
the varying significance of international 
law imputs in varying situations. As 
background, this study is certain to be 
of significance to future work you may 
do in planning operations. Many of you, 
in the near future (or indeed in the 
immediate past), will be preparing 
operational plans, and your choices or 
alternatives and the reasons for chosing 
between them well may be affected by 
considerations of international law. In 
short, you have been or will be respon- 
sible for initial preparation of the plans 
which carry with them the instructions 
to the skipper or other commander on 
the line. Here, your interest in this 



subject matter becomes much more 
obvious and direct. Suppose, for 
instance, that you had been assigned to 
work on preparation of orders covering 
Operation Market-Time. While you 
would expect to go to JAG for help on 
available international law, you would 
still want to be in a position yourself to 
appraise and orient the advice you 
receive and correlate it to your opera- 
tional plan. 

Let me summarize for a moment. 
The international law which you most 
likely are to be concerned with in 
planning is the body of material affect- 
ing rather vital national interests. This is 
the material, within the broad field of 
international law, which is most volatile 
and relatively uncertain, in which ap- 
proaches and attitudes may be more 
important than knowledge of specific 
treaty provisions or precedents from the 
past, in which balanced consideration of 
varying arguments may be required. 
This aspect of international law does 
contain great uncertainty, as well as 
great capacity for flux and change. It is 
worthwhile remembering that other 
areas of international law, less closely 
identified with basic national interest 
and peace but fundamentally important 
to everyday international exchange and 
trade, are much more certain in their 
content and much more reliable in state 
conformity of conduct to those stand- 
ards. Status-of-forces agreements, for 
instance, are carried out every day- 
many of you will be familiar with some 
of the details of cases involving mem- 
bers of a crew or other contingent 
involved with local authorities in an- 
other country. 



t 



44 



INTERNATIONAL LAW AND THE WORLD COMMUNITY 

THE MEANING OF WORDS, THE NATURE OF THINGS, 

AND THE FACE OF THE INTERNATIONAL ORDER 



Louis F.E. Goldie 



I. INTRODUCTION: 
DEFINITION AND MEANING 

Endemic among you there is, I know, 
either skepticism about the claims of 
international law to reflect a legal order 
or annoyance at both the restraints you 
feel that international law imposes on 
you and the protections it seems, from 
your perspective, to give to wrongdoing 
states. Today I am going to try to 
dissolve that skepticism and to demon- 
strate that, although you may feel inter- 
national law's restraints to be irksome, 
they can also limit your adversary, your 
competitor, so that he too can be 
brought to feel their discipline. Much, 
indeed, of what arouses your skepticism 
or engages your impatience may not so 
often be the restraints of law as chosen 
policies of self-restraint or of permissive- 
ness to others. International law may 
not, in all cases, require the kind of 
conduct which engages your cynicism. 
But first we need to clear up a few 
preliminary matters; for example, what 
we mean by such terms as "law" and 
"international law." 

Many people ask, when they look at 
the international order and see that 
there are none of the regular institutions 
of a domestic legal order, no legislature, 
no executive with law-enforcement 
authority, and no system of courts with 



compulsory jurisdiction: "How can in- 
ternational law be law at all? "Now this 
brings me to my first point. Only too 
often people confuse a significant dis- 
cussion about the nature of things, or 
the nature of law, as in this case, with a 
trivial argument about the meaning of 
words. Let me illustrate this. 

Most people's concept of law, even 
today, is based on an authoritarian 
model which can be stated in general 
terms as a general command issued by a 
sovereign authority owning no political 
superior, enforced by the authority of a 
system of courts, and administered by 
an executive authority. This is one 
generally accepted definition of the 
word "law." But it is a very narrow, 
restricted view of the law, and it leaves 
out of account very many kinds of law, 
even very many kinds of domestic law. 
On the other hand, its wide acceptance 
stems from the English Utilitarians of a 
century and a half ago, especially 
Jeremy Bentham and John Austin, and 
their extensive program of domestic 
legislative reform. One consequence of 
this positivist, utilitarian definition of 
law was that international law came to 
be characterized as "positive morality." 
This illustrates my point. Stipulate a 
narrow definition of the word "law," 
and international law is excluded. On 
the other hand, if you stipulate a 



45 



broader definition of law, international 
law will be included. This reminds me 
about all the controversy which has 
been plaguing the world of literature for 
about a hundred years: "Did William 
Shakespeare really write those plays he 
is credited with?" One answer is: "If he 
did not, then somebody else called 
William Shakespeare did." 

If anyone says to me, "I stipulate a 
definition of law which will exclude 
international law. Therefore interna- 
tional law is not law," I will say, "Well, 
your second sentence, your conclusion, 
is unnecessary; it was already inherent 
in your premise. If you stipulate that 
kind of a definition of law, that is your 
business. And I do not wish to argue 
over trivialities. But I would like to 
point out that you are probably wrong 
in your concept of what law is." This 
last is not a trivial point. It is something 
we should think about— what the nature 
of law is, what its uses are, how we may 
best employ it, and how, indeed, it can 
be utilized to the advantage of the 
Navy, of the United States, of the world 
community, rather than treat it as a 
counter in a parlor game with words. 

II. A LEGAL SYSTEM AT WORK- 
SOME "STILL" PICTURES 

I will start my discussion of this 
topic of finding some common models 
or pictures of a legal system with the 
idea that most of us find international 
law a difficult concept to grasp, or a 
difficult thing to think about, because 
our everyday ordinary way of thinking 
about law is the product of common 
experiences— these produce the models 
we have in our heads. For example, a 
common model of the legal system at 
work is the picture of a traffic police- 
man booking us for making a left-hand 
turn out of a right-hand lane. Now we 
know there is a rule, we know there is a 
person in authority, and we know we 
have done the wrong thing. And this is 
an easy and simple approach to giving us 



a model or picture of what law is. 
Behind the policeman is the State Legis- 
lature which authorized the writing (or 
indeed may have written itself as is the 
case in some states) the Rules of the 
Road, including the strict requirement 
about not making left-hand turns out of 
right-hand lanes. The policeman himself 
is appointed under laws written by the 
State Legislature, and ultimately his 
appointment has to be valid, as the legal 
provision our citizen has offended has 
to be valid, under the Constitution of 
the State and that of the United States. 
There is thus a legal system which bears 
down on us, possessing the powerful 
and vast machinery of a sovereign state, 
complete with legislature, authoritative 
executive, and, finally, courts with com- 
pulsory jurisdiction. (If you make a 
left-hand turn out of a right-hand lane 
you will probably find yourself in one 
of the very minor courts of a great 
hierarchy of judicial institutions.) In 
addition to showing our motoring citi- 
zen as feeling very sorry for himself 
while the officer writes out the ticket 
and says, "You shouldn't have done 
that, sir," or words to that effect, there 
is a vast background which the legal 
order provides to this trivial legal event. 
Insofar as this incident has legal signifi- 
cance, it involves the whole domestic 
legal order and is governed by it. In this 
way we all see the secure order of great 
richness in commands or, better, pre- 
scriptions, rules, institutions, and validly 
appointed legal authorities which keep 
our complex society functioning with 
the minimum of friction and waste. 
Then we look to international law and 
we see none or, at best very little of this 
institutional richness and depth of legal 
rules, institutions, experience, au- 
thority, and power. 

I have gone into some detail with this 
picture, this common model of the legal 
order, since many of us and our fellow 
citizens carry it in their heads as their 
belief that it constitutes a "hard-core" 
example of the legal system at work— 



46 



the citizen in his automobile and the 
traffic policeman on his motorcycle. 
This is also in that area of law which 
most people regard as the paradigm of 
the legal order— the enforcement of the 
criminal law. Let us now go a little 
further. Do you think that in many 
cases when the U.S. Government, for 
example, may have to deal with or- 
ganized crime in the United States, the 
law enforcement situation is so simple? 
It seems to me that some research 
worker could probably uncover an 
enormous and intricate system of nego- 
tiation, concession, surrender, giving 
ground, claiming ground, and so on, in 
many of the major cases which the 
Federal Government or a State govern- 
ment brings against a major representa- 
tive of organized crime, in order to 
conduct the case ultimately to the 
conviction and punishment of the 
accused. It seems that when we observe 
governments prosecuting major under- 
world figures we are already a long way 
from the clear-cut law-enforcement 
situation of the policeman and the 
motorcar driver or the policeman and 
the petty criminal. Let us go another 
step further. 

Outside the realm of criminal law— 
and you will notice that I have kept my 
pictures, so far, in the realms of criminal 
law— we find that there are many more 
diverse ways in which the law operates 
than we are apt to expect inside the area 
of criminal law. We find that the legal 
system appears, mainly, to provide the 
citizen with the procedures, with the 
means, of doing the sort of things he 
wants to do. The Law of Real Property 
is not only a law which tells trespassers 
to keep off your property or be prose- 
cuted; it is also a law, a body of very 
intricate law, that tells you how you can 
enjoy what you have and, if you have 
the right kind of interest, the many 
ways in which you can transmit that 
interest or the fruits of it to other 
people; what it can be worth to you in a 
money sense— given the state of the 



market— and how you can enjoy it to its 
best advantage. This is not telling you 
not to do something. There is here 
nothing like an equivalent of disobeying 
a prohibition— for example, making a 
left-hand turn out of a right-hand lane 
or even of belonging to a powerful 
syndicate of criminals running illegal 
"business ventures." This area of law 
tells you what you can do with your 
own so as to effectuate the maximum of 
enjoyment to yourself and with maxi- 
mum advantage to your neighbors. 

Again, when a civilian writes a will 
there are certain rules that he must 
fulfill; for example, he must have his 
signature attested to by a certain num- 
ber of witnesses (the actual number 
depending on state law); also he must 
follow certain other basic procedures. It 
would, therefore, be wrong to say that 
the law relating to the writing of wills 
consists of commands given by a legisla- 
ture and enforced by sanctions— by the 
threat of prosecution and punishment. 
After all, what is the sanction if some- 
one writes a will and fails to have it 
testified to by the right number of 
witnesses? The will may be invalid, but 
the citizen will not be punished by any 
decision to invalidate his will. After all, 
he is dead! In this kind of a situation, it 
seems silly to call nullification a sanc- 
tion, a threat of punishment. 

The system, the laws we have on 
writing wills, are what we may call 
facultative or facilitating rules. So are all 
the rules which tell us, and institutions 
which tell us, how to do what we want 
to do in the best way for ourselves and 
our fellow citizens. 

Thus we see that law— even law 
within these United States— is something 
far more pervasive, far less clear-cut, 
than a prohibition, an offense, a police- 
man, and a lower court. We need to give 
it a far wider definition. Now the 
interesting thing is once we move a\\a\ 
from the idea that the legislature, execu- 
tive, and courts with compulsory juris- 
diction are essential to the existence of 



47 



a legal system, almost any other defini- 
tion of law includes international law. 
If, for example, we are prepared to say 
that a legal system consists of a process 
of authoritative decisionmaking, in 
which basic values become reflected in 
social action by means of the decisional 
process and through the agency of the 
authoritative decisionmakers (including 
courts, but not restricted to them), then 
we find that international law fits into 
that definition quite well. Again, if we 
add thereto the concept of law as a 
system of facilitative means of social 
interaction and communication which 
contains prohibitions only where inter- 
action extends beyond what is per- 
missible in a mutually viable system, 
then, here too, we find that interna- 
tional law quite clearly fits within our 
definition. Also, if we state that it is a 
most important means of directing par- 
ticipants' efforts for the realization of 
common values, then, again, interna- 
tional law fits in with such a definition 
of law. Now, I have stressed the prob- 
lem of definitions because I really want 
to underline the distinction between the 
trivial point of arguing about the 
meaning of words and the important 
point which calls for an investigation of 
the nature of things. I must also point 
out that the definitions of law which I 
have just indicated seem far closer to 
the nature of law than the more tradi- 
tional one which emphasizes power and 
enforcement at the expense of inter- 
action and direction. I will close this 
section of my presentation by pointing 
out to you that international law pro- 
vides prohibitions which states, like 
individuals, take into account when 
calculating the chances of success a 
given policy may have. In addition, and 
more significantly perhaps, it exists as a 
system of decisionmaking, of process, 
and of communication. Assuming a 
knowledge of international law is like 
assuming a knowledge of language. You 
can cue your friends and your rivals as 
to your intentions and then indicate to 



them those of their options which are 
acceptable to you— and those which are 
unacceptable. Your game plans, inci- 
dentally, should include the choice of 
your adversaries' selecting unacceptable 
options. These, again, should be clearly 
discernible through the language of in- 
ternational law. 

III. THE NATURE OF 
INTERNATIONAL LAW- 
RESPONSES TO SOME CRITICISMS 

A. The Problem of State Sovereignty 

There is a more sophisticated variant 
of the skeptics' position which we have 
just discussed, namely that international 
law cannot be "law properly so called" 
since it is not issued by a sovereign 
commander, is not supported by sanc- 
tions, and is not administered by courts 
with compulsory jurisdiction. That 
more sophisticated variation takes up 
the concept of sovereignty from a new 
point of view. It argues, not on the 
footing of international law's failure to 
indicate its own sovereign, but rather, 
that since it is an order of sovereign 
nations, it cannot for that reason also be 
a legal order. More briefly, this argu- 
ment holds that national sovereignty is 
inconsistent with international law. The 
inarticulate premise of such an argu- 
ment is that if a legal system is itself the 
child of sovereign authority it cannot, at 
the same time, incorporate many sover- 
eigns. The restricted definition of law 
itself, which I outlined earlier, comes up 
again. It is translated into this new 
inverted perspective of sovereignty and 
the international order. 

But what do we mean when we talk 
of national sovereignty? From the point 
of view of international law, the sover- 
eignty of a state is not an extralegal or 
metalegal concept. Rather, it is a basic 
concept of international law and is 
defined by it. Sovereignty is the term 
used to describe the competence which 
the international law ascribes to states. 



48 



We tend, perhaps, to think of sover- 
eignty in absolute terms. Yet no state is 
sovereign in the world today in the same 
sense that the Roman Empire was sover- 
eign in the Mediterranean Basin, in, say, 
A.D. 100. The difference between then 
and now is that although every contem- 
porary state is said to be sovereign, each 
one must recognize and act in terms of 
the sovereignty of all the others. For all 
sovereign states act and interact in the 
common arena of international relations 
wherein international law facilitates 
their peaceable interactions and is 
formulated to limit, where it cannot 
prevent, states' hostile or violent inter- 
actions. International law thus may be 
seen, at one and the same time, as 
according and ascribing to states their 
sovereign authority as the form of com- 
petence they enjoy in the international 
arena and placing the necessary limits 
on that competence in order to limit, 
and to humanize, collisions in its mutual 
and interacting exercise. In contrast 
with the contemporary world where 
more than 120 states interact in the 
same area of action, the sovereign situa- 
tion of the Roman Empire existed 
simply because there were no other 
states interacting with it to limit its 
sovereignty. By contrast with the ex- 
ample from the Roman world, the 
contemporary states' interaction calls 
for the ascription of competences to 
states. We denominate these compe- 
tences "sovereignty," which becomes a 
legally defined and a relative concept. 
Admittedly, that definition is in ex- 
tremely wide terms; but there are limits 
to it. There are limits to it set by 
treaties and by customary law. Ex- 
amples of the customary law limitation 
on state sovereignty are states' universal 
recognition of the immunity of foreign 
sovereigns, their diplomats, and their 
warships in receiving states' ports. At 
such points as these, and even on the 
territory of the United States, our legal 
sovereign power stops short. It meets 
the opposing and countervailing sover- 



eign competence of a foreign country. 
Thus, while it is so latitudinarily defined 
as, possibly, to weaken and undermine 
the orderliness of the international legal 
order, the concept of state sovereignty 
does not contradict that order. It can- 
not do so, because it is, itself, a deriva- 
tive of that order. 

B. The Problem of Commitment 

Tied in with the problems which the 
looseness of the international order pre- 
sents is a criticism which looks, at first 
blush, like a restatement of the argu- 
ment we have just disposed of when 
that is freed of its conceptualist impedi- 
ment labeled "sovereignty." This attack 
on international law, however, in reality 
comes from a very different group of 
theorists. Those who argue that national 
sovereignty is inconsistent with interna- 
tional law, and is a logical denial of it, 
are concerned about international law's 
failure to develop into a highly inte- 
grated and formalized system of au- 
thority. The critics whose position we 
are now going to review, on the other 
hand, argue against international law's 
validity on pragmatic grounds. They 
argue that because, as it is clear on any 
view of the way states behave toward 
each other, no state has an overriding 
and absolute commitment to the vindi- 
cation of international law at all costs, 
international law either does not exist in 
international reality or, at most, does 
not reflect a meaningful legal order. I 
suggest to you that such a thesis is 
completely beside the point. It is, 
furthermore, not only based on a cyn- 
ical, Machiavellian view of the law, it is 
also based on a misconception of the 
relation of law and morals and of the 
morality of obedience to law. Everyone 
in this room has a sticking point where 
he would not have an overriding and 
absolute commitment to the vindication 
of the domestic law of the United States 
or of the State of Rhode Island. There 
may be situations where the law may 



49 



call upon a citizen to do things that go 
against his basic moral ideas and which 
he will withdraw from doing. Thus, 
once we really start to look at the 
criticisms involving the issue of commit- 
ment which frequently are sagely 
adduced to deny the existence of inter- 
national law— including those by such 
eminent men as Dean Acheson, George 
Kennan, and Professor Morgenthau— we 
find that their positions turn on mis- 
taken notions about either the meaning 
of law or about the expectations people 
might appropriately entertain of inter- 
national law itself. Moreover, they do 
not, perhaps, think sufficiently com- 
paratively in order to evaluate how 
people, in general, react to certain legal 
rules which might be imposed before 
they look at theorists' and states' 
adverse reactions to specific rules or 
doctrines of international law. 

The cynical position we have just 
reviewed is, of course, made all the 
more plausible when we remember that 
there is an issue many legal philosophers 
overlook when discussing the way in 
which legal systems work. The truism is 
this: there is no legal rule for applying a 
legal rule. Whenever any legal rule is 
applied, it is applied by a human being 
who is applying (a) his knowledge of 
law; (b) his evaluation and characteriza- 
tion of the facts; (c) his ideas of the 
relevance of the law he knows to the 
facts before him; (d) the theory and 
morality of law he entertains; and (e) 
the policy goals of the law he holds to 
be relevant to the case. Now I am 
coming to one of the points I need to 
emphasize this morning. You all carry 
around with you your own moralities of 
law and your own theories of law. You 
are all legal philosophers, and you apply 
your philosophies whenever you face a 
legal problem or make a legal decision. 
Your problem may well be that, al- 
though you operate from philosophical 
premises about the nature and morality 
of law when you apply a rule or discuss 
the meaning of law, those premises are 



mainly below the threshold of your 
articulate thought. But, whether fully 
articulated and at the forefront of your 
minds, or operating as inarticulate 
premises or unconscious prejudices, 
they exist and they guide your knowl- 
edge and your thinking about law in 
general and your application of law, 
whether that is to enforce the discipline 
of a ship, or to identify the relevance of 
article 2, paragraph 4, of the Charter of 
the United Nations to a specific situa- 
tion or decision you may have to make. 

C. The Problem of Obligation 

This leads me, then, to the third 
point in our discussion of the meaning 
and function of international law. At 
least as significant a question about 
international law as the question, "Is 
international law really law?" is the 
question: "Is international law really 
binding?" This then leads on to the next 
question: "And, if so, what is the nature 
of international law's obligatoriness?" 
Many critics of international law again 
show their policeman hangup when we 
come to this issue. They point to the 
unsatisfactory means of enforcing inter- 
national law. Owing to the deadlock of 
the United Nations Security Council, 
the only sanction is by the use of force 
by states. In this context, however, we 
may tend to underestimate the legal 
significance of joint action by collective 
self-defense. This, after all, was the 
earliest form of law enforcement in 
domestic legal systems and identified in 
early Anglo-American law as the "hue 
and cry." Be that as it may, it is still 
unfortunately true that the general hue 
and cry reflected in the United Nations 
General Assembly's Uniting for Peace 
Resolution has long been losing what- 
ever effectiveness it may once have had. 
Again, resort to reprisals by individual 
states, once a significant sanction, is 
ceasing to be effective for a myriad of 
reasons, not the least important of 
which, perhaps, are such prohibitions as 



50 



those to be found in article 2, paragraph 
4 of the United Nations Charter which 
tells us that: "All Members shall refrain 
in their international relations from the 
threat or use of force against the terri- 
torial integrity or political independence 
of any state, or in any other manner 
inconsistent with the purposes of the 
United Nations." 

But to say that because it cannot be 
enforced, an obligation does not exist, is 
nonsense. Clearly there are binding obli- 
gations in international law which states 
could only flout with full knowledge of 
the illegality of their conduct. We 
should note two well-known facts here. 
First, while states may act knowingly in 
breach of international law from time to 
time, their breaches are generally, in- 
deed standardly, the result of decisions 
to take calculated risks. That is, states 
tend to take calculated risks regarding 
how severe or painful other states' 
condemnatory reactions will be. 
Second, no matter how frequently one 
state may breach its international obli- 
gations, it is always indignant at 
breaches by other states. Hence it is 
clear that states review both their own 
and other countries' policies and con- 
duct in the light of a widespread pre- 
sumption that international law not 
only exists, but also will be obeyed and 
followed. Why should this be so? It is 
clearly because each state anticipates 
that its own long-term advantage lies 
more with the compliance of other 
states with international law than at- 
tempting to survive in an international 
order where international law has no 
authority and creates no expectations. 
Such an order would either be one of 
chaos, where each state is entitled to 
deny all claims by others not supported 
by sufficient strength to enforce them, 
one where there is no law but that of 
the jungle and where no right can be 
maintained except that of holding as 
much as can be physically mastered, or, 
alternatively, be one governed by the 
totalitarian authority of a single world 



empire. (For we may note, parentheti- 
cally, that even a world federal system 
would still need to include much, if not 
most, of the present order for many 
years to come, and so should not be 
viewed as a valid alternative to the 
present order as much as one possible 
development of it.) 

Neither chaos on the one hand nor 
subordination in a world empire on the 
other has much appeal to most states, 
hence their acceptance of the present 
order in its broad outline and their 
indignation at breaches of international 
law by their fellow subjects of the 
system. Often, indeed, states brazenness 
when charged with breaches of their 
own obligations appears to reflect their 
acknowledgment of their duties and 
their guilt at their evasions. They seem, 
only too frequently, to remind us of the 
self-indulgent Roman poet's confession, 
videor meliora proboque, deteriora 
sequor—\ see the better and more 
honorable course of conduct as I follow 
the worse. 

New states are currently accepting 
the international legal system as an 
order, while calling for specific changes 
to those of the specific rules and doc- 
trines which they consider irksome or 
anachronistic. This is evidenced by their 
rejection of the Communists' traditional 
rejection of international law. It is also 
reflected at the present time, interest- 
ingly enough, in Russia's willingness 
(together with her satellites, as dis- 
tinguished from China and hers) to 
cooperate within the system, to abide 
by an increasing (if uncertain) number 
of the existing customary rules of inter- 
national law in the name of "peaceful 
coexistence" and to prefer the chi- 
canery of a shabby diplomat over the 
tactics of an outraged revolutionary. 

This review of states' conduct as 
standardly reflecting a general accept- 
ance of the international legal order as a 
system should not blind us to the fact 
that most of the new states are dis- 
satisfied with, and many question the 



51 



validity of, some of the rules we have 
inherited from the past as part of 
customary international law. But the 
rejection of some traditional rules by 
some of the new states as irrelevant to 
the present international order and the 
questioning of others by many should 
not be confused with a total rejection of 
the system. Rather, it is a demand for 
peaceful legal change to reflect the 
enormous social change in international 
society which has gone on over the last 
two decades. My message in this part of 
my lecture simply boils down to this: 
We can, and should clearly distinguish 
between demands for changing the 
rules, doctrines, and institutions of 
international law from demands for the 
overthrow of the present international 
legal system. The former note is loudly 
and sometimes dissonantly struck, the 
latter is hardly struck at all; except 
sometimes in the rhetoric of an angry 
politician speaking, usually, either for 
home consumption only or in a spirit of 
malicious gamesmanship. 

D. Some Friends of International Law 
and What They Have Wrought 

One of the greatest disservices that 
has been performed to international law 
by its supporters is the overstatement of 
the case for international law by the 
Great Optimists. In our culture we have 
a long tradition of being suspicious of 
politics, politicians, and "the political" 
—namely the making of political issues 
out of issues which could be left to 
economics, jurisprudence, sociology, or 
any other science or psuedoscience. We 
have, since the 17th century, since the 
English Revolution, the French Revolu- 
tion, the American Revolution, had a 
basic philosophical value, namely that 
science and scientific man should re- 
place politics and that ultimate scoun- 
drel, political man. This, of course, was 
the metaphysical basis for justifying the 
transfer of much activity, especially 
economic activity, from the public to 



the private sector. Its corollary has been 
the proliferation of models of man as an 
object of science, "economic man," the 
"reasonable man" of the law, and 
"sociological profiles," to name but a 
few of the models of "scientific man." 
The model of scientific man may have 
originally developed as a metaphysical 
foundation for the privatization of 
social action. Today, paradoxically, it, 
and the traditional hostility to "the 
political," is leading to the proliferation 
of bureaucracies as the most "scientifc" 
means of directing predictable conduct. 
This phenomenon is as noticeable in the 
international arena as it is elsewhere, 
and little thought has been given to 
either the basic justifications of such a 
proliferation (except, possibly, the 
political one of recruiting the leadership 
of the developing world in favor of 
international organizations by demon- 
strating their attractions!) or to viable 
alternatives. 

Any philosophy which can offer a 
program for eliminating the unpre- 
dictable, temporizing, and covinous 
qualities of political action and substi- 
tute the predictable conduct of "scien- 
tific man" in place of it, offers a very 
attractive dream. Particularly, from the 
point of view of this lecture, the rise of 
the science of jurisprudence and of the 
reasonable man, or bonus paterfamilias, 
gives us a means of replacing politics by 
codes, constitutions, and treaties. The 
precision of jurisprudence and of legal 
logic could then, so the advocates of 
mechanistic jurisprudence and mechan- 
istic man aver, be called to replace the 
imprecision of human life and the dis- 
cretions of myriads of interacting indi- 
viduals pursuing, in the public arena, 
their private goals. As I pointed out 
earlier, this is an old habit in our 
culture. Let us remember that at the 
height of the Terror of the French 
Revolution, France's extremely dis- 
tinguished "blueprint writer," Abbe 
Sieyes, believed that all he had to do 
was to draw up a better Constitution lor 



52 



France, and all that terror, all that 
bloodshed, all those executions would 
stop. He quite forgot that people tend 
to kill other people for reasons which 
are more compelling than the message 
of some words on paper, no matter how 
eloquently, rationally, or elaborately 
these may be formulated. Optimistically 
drawing up better documents, constitu- 
tions, treaties is, in a nutshell, what 
some lawyers think they mean when 
they refer to that vaguely menacing 
ideal of "social engineering." (Others, 
including myself, mean something quite 
different, namely the improvement and 
addition of precepts, institutions, and 
procedures which facilitate intercourse, 
communications, respect, and participa- 
tion; we do not desire to engineer 
society, only to engineer for society like 
real engineers do with hardware.) Trans- 
ferred to the international sphere, the 
dream of the social engineers has pro- 
liferated, because many people believe 
that the international legal order, above 
all, requires special engineering. They 
say that we can make peace permanent 
and secure if we draw up a better treaty; 
that if we appeal to the reason in men 
to see that this treaty is in the best 
interests of us all, everyone will agree 
with it, and perpetual peace will result. 
Now there are many people in this 
country and abroad who believe this 
fervently. And I have every sympathy 
with them. I only wish, first, that they 
were right; and second, that they did 
not arouse so much skepticism in the 
hearts of those who would otherwise be 
merely lukewarm toward international 
law. There is, unfortunately, a spillover 
of the skepticism these idealists generate 
toward the drawing of their more way- 
out blueprints which sometimes seems 
to threaten to engulf international law 
in general. 

The professional optimists have done 
international law a major disservice by 
overstating the case for it. For them, 
almost every international problem 
becomes resolvable by a legal formula. 



Now this, patently, is not true. Lawyers 
operate on the assumption that all 
disputes can be formulated clearly and 
be made the objects of litigation, arbi- 
tration, or negotiation on the footing of 
legal dialectic. Politicians, especially 
those opposed to this legalistic ap- 
proach, seek to avoid putting their 
claims into legal, concrete, and binding 
form. They prefer to view disputes as 
tests of nerve and strength and so avoid 
making their demands rationally ex- 
plicit. This is sometimes also true of the 
domestic sphere, especially in business 
relations. (It may be of interest to 
suggest that much of the problem the 
courts face with regard to enforcing the 
duty of good faith bargaining in labor- 
management disputes tends to be re- 
lated to the need to force parties to 
negotiate on the footing of concrete 
claims and counterclaims, rather than 
on the raw basis of nerve and strength.) 
The limits of what is appropriately a 
legal decision are all around us, even in 
private life. For example, your attorney, 
whom you wish to instruct to draw up 
your will, may advise you as to how you 
should draw up a trust for your chil- 
dren, but he is not going to tell you how 
to make a detailed distribution of your 
estate. He may advise you as to what 
sort of claims should be responded to 
when you draw your will. He may, in 
addition, offer advice, in general terms, 
about whom you should consider appro- 
priate targets of your posthumous 
bounty. And, in discussing some possible 
basic family claims, he advises you be- 
cause he is as much a trusted and knowl- 
edgeable friend as he is your lawyer, 
although his experience as a lawyer may 
render his advice all the more worth 
heeding in this extra-professional con- 
text as well. But this is because he is a 
man experienced not only in the writing 
of wills, but in the way people make 
posthumous distribution of their wealth 
amongst their family and friends. In a 
strictly professional sense he should, as 
a lawyer, accept your instructions and 



53 



should only tell you or warn you about 
a distribution which you propose to 
make which may be so unfair or in- 
equitable to members of your family 
that it might be open to attack, in some 
jurisdictions at least, after your death. 
Where he gives you further advice he is 
not solving your problems, he is helping 
you make nonlegal decisions on how 
you could best use the facilities the law 
offers you. Incidentally, this excursus 
about the interaction of choices and law 
when it comes to making a will provides 
an example of the way society provides 
us with the means of doing what we 
want or need to do through law. 

We have already seen how interna- 
tional law is facilitative and functional. 
We now note that it does not prescribe 
the goals of human action (the goals, for 
example, of human respect, participa- 
tion, and dignity and freedom), al- 
though it may be formulated in terms of 
such goals. These goals may be ex- 
pressed by lawyers and he incorporated 
in legal documents; but they remain 
above and beyond the law, and the law 
provides one of many means of 
achieving them. For the ultimate de- 
mands we make on life and on society 
are not legal demands. And it is a 
mistake to try and substitute the needs 
of life by the criteria of the law. 

IV. INTERNATIONAL SOCIETY 
AND LEGAL CHANGE 

We are told that in the "Third 
World"— the world of the developing 
countries— the charge is laid against 
international law that it is simply a form 
of neoimperialism. Only too often, how- 
ever, this rhetoric is an attempt to 
forestall us in indicating to some of the 
emerging or developing countries what 
their legal obligations are. This is a piece 
of gamesmanship we would do well not 
to heed. On the other hand, these 
countries are also telling us that they 
have a demand for legal change. This is 
something to which we should listen 



most carefully. But, because we have 
not been clear-cut in our thinking only 
too often, our responses to gamesmen's 
charges have been as conciliatory as 
those to the people who are making 
serious claims for legal change. Our own 
confusion about international law has 
encouraged others to assert the non- 
existence, or the disuetude, of many 
legal rights which have a lively claim for 
contemporary respect, recognition, and 
vindication. It is as if, being careless 
about its own most valuable legal pro- 
tection, namely law itself, the United 
States were encouraging others to be 
more careless about this country's rights 
than they would normally be. But this is 
an aside. We must turn back to our main 
problem in this part of my lecture, 
namely, that of legal change in interna- 
tional law. 

If, for the sake of an easy and 
familiar model in its general outline at 
least, we look at the domestic law of the 
United States for an example, we see 
the functioning legislatures as well as 
the courts and the executives. Now we 
know the function of a legislature is to 
keep law in tune with society, or at least 
we are told this is the function of the 
legislature. In contrast with this situa- 
tion, there is no legislature or any 
similar institution in the international 
legal order which can be called upon to 
bring about timely legal change. But this 
does not necessarily mean that interna- 
tional law is a body of archaic and 
antiquated rules which can only be 
found in the doctrines, writings, and 
practices of 17th century Western 
Europe which have remained unchanged 
ever since. Despite its lack of the usual 
accouterments of legal reform through 
legislation and despite the fact that the 
possession of a legislative organ would 
possibly help international law to be 
both more elegant and contemporary, 
international law does change. It can, at 
times, change with surprising speed. 
States can change their legal rights and 
obligations by entering into treaties, and 



54 



more and more international law is 
being expressed in multilateral conven- 
tions. States may also enter into re- 
gional agreements and bilateral treaties. 
As far as those treaties are concerned, 
states may also alter and redefine their 
legal relations amongst themselves very 
considerably. Again, a trend in bilateral 
treaties may start a new development in 
general customary international law. 
For example, one of the most signifi- 
cant factors of the Alabama Claims 
Arbitration was not that this was one of 
the very early arbitrations to which 
sovereign states resorted, despite the 
very high and hostile feelings which ran 
on each side, but also because it was 
significant in the development of the 
rules of neutrality. This arbitration was 
called to decide a dispute between the 
United States and Great Britain after 
the defeat of the Southern Confederacy. 
The United States asserted that Great 
Britain had allowed the Alabama and 
the Georgia and their warlike equip- 
ment, to be built and supplied by 
British yards contrary to the latter 's 
duties as a neutral. 

The parties met in head-on dispute 
over the question of law since, at that 
time, doubts still existed as to the duties 
of a neutral state regarding the supply 
of war vessels to a belligerent. But, by 
the Treaty of Washington of 1871, the 
parties agreed to the famous "Three 
Rules" which have since then come to 
be regarded as substantially reflecting 
the customary international law duties 
of neutrals and, with some changes, 
have been formulated in article 8 of the 
Hague Convention No. 13 of 1907. 
They provide, in effect, that a neutral 
state must use "due diligence" to pre- 
vent: 

(1) the fitting out, arming, adapting, 
or equipping of a vessel in its jurisdic- 
tion which it has reason to believe is 
intended to cruise or otherwise engage 
in hostile acts against a government with 
which it is at peace; 

(2) the departure of such a vessel, 



once it has been fitted out, armed, 
equipped, adapted or built, from its 
jurisdiction; and 

(3) violation of these duties within 
its ports, roadsteads, and waters. 

Thus, in addition to their utility as 
defining, or redefining, the obligations 
of the parties and to expressing agree- 
ment between states on a contractural 
footing by setting an example for future 
conduct, bilateral as well as multilateral 
treaties can start new developments in 
customary international law. Secondly, 
legal change comes about by what is 
regarded as a second source of law (as 
prescribed in article 38 of the Statute of 
the International Court of Justice), 
namely by custom. Old customs can be 
dispensed with. Long before the chal- 
lenges of the modern age, for example, 
the idea that a state could acquire 
territory simply by discovering it had 
disappeared well before the end of the 
19th century as a result of the techno- 
logical and population changes of that 
century. In previous centuries, when 
explorations had been conducted in 
leaky wooden hulks, propelled only by 
sails or oars, an adventurer was able to 
acquire territory for his sovereign 
simply by an act of discovery. In the 
19th century, with the introduction of 
iron- and steel-hulled steamships, we 
find that to recognize this as a basis of 
title becomes no longer feasible. There 
would have been too many title- 
conferring "discoveries"! Something 
much more came to be required before 
international law could recognize the 
acquisition of territory— so occupation 
came to be developed as a replacement 
of discovery as a legal concept which 
could validly provide states with original 
titles to masterless lands. Occupation 
called for more activity than discovery 
did, namely a real "taking" of and 
exercise of control over the territory in 
question before it could be said to 
belong to the claimant. Thus we have 
here an early example of technological 
and demographic change effecting a 



55 



change in customary law. Today, of 
course, customary law seems almost to 
be withering before the rapidity of 
technological and demographic change. 
But this can be overstated. While some 
aspects are withering, others, interest- 
ingly enough, are acquiring a new vigor 
and are requiring a new restatement. 

V. THE CRISIS OF 
INTERNATIONAL LAW 

My last observation is not intended 
to palliate the fact that international 
law is in a state of crisis today. This has 
many causes and more symptoms. With- 
out any notion of ordering these in a list 
of importance, I would like briefly to 
indicate them as follows: the techno- 
logical revolution; the population ex- 
plosion; the decolonialization policies of 
the former European empires (Western 
European empires, not the Eastern 
European ones) and the proliferation of 
new "developing" states; the rise of 
single-party states as the norm of the 
developing world instead of the demo- 
cratic two-party or multiparty politics 
which had been hoped for and opti- 
mistically predicted at the time of the 
independence of more new countries; 
and, finally, revolutionary communism. 
But, as I indicated earlier, these factors 
have not led to a widespread, root-and- 
branch denial of international law, but 
only to disputes as to the meaning, 
scope, and content of specific rules, to 
claims for legal change, and to an 
acceleration of social change. This last, 
the factor of acceleration, places inter- 
national law under increasing stress on 
account of the paucity of its institutions 
geared towards responding to the needs 
of accelerated legal change. 

On the other side of the coin we find 
there is a great and very important 
proliferation of universal and regional 
agencies. The central organization in 
international law is the United Nations; 
but there are many more international 



agencies than just this one. And these 
are becoming of increasing importance. 
There are regional agencies such as the 
Organization of American States and 
collective self-defense arrangements like 
the North Atlantic Treaty Organization. 
There are important universal agencies 
such as the Universal Postal Union and 
the International Telecommunication 
Union. These, I must emphasize, exist as 
institutions of international law. Al- 
though you may not realize it, they 
affect your daily lives. The fact that you 
can have rapid and cheaply mailed 
letters from anywhere in the world to 
the United States, the fact that you can 
send telegrams anywhere in the world 
from the United States or receive tele- 
vision news items by satellite are due to 
these and other important international 
organizations. 

Lastly, there is the peace-enforcing 
function of regional organizations. I will 
just give you, as my time is running out, 
one example. The Cuban Missile Crisis 
in 1962, and the defensive quarantine 
which was imposed in response thereto 
were achieved through the procedures 
and processes of the Organization of 
American states. The U.S. Navy could 
act as it did only through the intelligent 
utilization of the United Nations 
Charter and the Rio de Janeiro Pact. 
Our trump card was the agreement of 
the Organization of American States 
that the Soviet missiles in Cuba were a 
threat to this hemisphere. We may hope 
that it is through the regional and 
universal organs of peace and progress 
that desirable legal change can be 
brought about in a timely way and that 
they will increasingly carry the burden 
which has come to be too heavy for 
customary international law and tradi- 
tionally drafted treaties to bear alone. 

It is for this reason that it is now 
possible to discern an emerging quasi- 
competence on the part of international 
organizations, and especially the United 
Nations, to indicate, by their practice 
and by their formulations of generally 



56 



held basic values and programs of legal 
change, emerging doctrines and pre- 
cepts. These enjoy, in international law, 
at least the equivalent of the "directive 
principles" of the Indian and Irish con- 
stitutions. In some cases, furthermore, 
they may have a more direct "self- 



executing" effect They may offer a 
new source of law responsive to both 
the interests calling for change and 
those promoting the values of stability 
and continuity. To do so they must, 
however, reflect a general, if not a 
universal, consensus. 



* 



57 



LEGAL FOUNDATIONS OF 



INTERNATIONAL RELATIONS 



Manley O. Hudson 



In his introduction to the latest Blue 
Book published by the Naval War 
College, Admiral Spruance quoted what 
he termed "a prophetic utterance" 
made in 1889 by William Edward Hall. 
Hall's treatise on International Law was 
a standard exposition of the British 
point of view over a whole generation. 
This was his statement which was 
quoted by Admiral Spruance: 

It is a matter of experience that 
times, in which international law 
has been seriously disregarded, 
have been followed by periods in 
which the European conscience 
has done penance by putting itself 
under straiter obligations than 
those which it had before 
acknowledged. There is no 
necessity to suppose that things 
will be otherwise in the future. I 
therefore look forward with much 
misgiving to the manner in which 
the next great war will be waged, 
but with no misgiving at all as to 
the character of the rules which 
will be acknowledged ten years 
after its termination, by 
comparison with the rules now 
considered to exist. 
We live today in a decade following a 
great war. I wish I might tell you that 
because of the penance which the 
world's conscience has suffered, great 
changes are in progress such as Hall 
foresaw. I would find it difficult to 



make such a statement, however, and 
perhaps we shall be on safer ground if 
we confine our attention today to the 
international law which has grown up in 
the past, even though in some respects it 
has been seriously disregarded in recent 
years. 

Our system of international law has 
been developed over a period of more 
than three centuries. It is distinctly 
Western and European in origin. In 
tracing its growth, we usually refer to 
the Spanish jurist-theologians of the 
sixteenth century, but we ascribe first 
place to Hugo Grotius whose great book 
on "The Law of War and Peace" was 
first published in 1625. For a long 
period, international law was conceived 
to be not only European, but also 
Christian, and its application was 
limited to Christian States. In the course 
of the nineteenth century, however, we 
broke ourselves free from such limita- 
tions, and in the words of the World 
Court the principles of international law 
"are in force between all independent 
nations" and "apply equally" to all of 
them. 

Fundamental in our thinking on in- 
ternational law is the conception of a 
community of States. All States are 
necessarily members of this community. 
There is no room in the modern world 
for a hermit State living outside of the 
community— even Nepal has recently 
come to a realization of this fact, and 



58 



has brought itself into relations with 
other States. 

If you ask me the number of States 
forming this international community, I 
cannot give a simple answer and I think 
you and I might have some differences 
of opinion. There are fifty -eight 
"States" which are members of the 
United Nations— at least they are all 
called "States" in the Charter, though 
some of them do not deserve the com- 
pliment A considerable number of 
States are not members of the United 
Nations. If we attempted to list them, 
we should probably be able to agree on 
fifteen; but we might run into differ- 
ences of opinion concerning an addi- 
tional eight or ten, for the status of 
some political communities is always in 
doubt New States have come upon the 
horizon, and some of those we listed a 
decade ago have disappeared. 

We start basically, then, with the fact 
that some seventy-five or eighty States 
exist in the world— they are more inter- 
dependent than independent— and with 
the conception that these States form a 
community. This community must have 
a law to regulate the relations of its 
members. That is the fundamental fact 
underlying international law. 

This community has suffered greatly 
in the past from lack of organization. In 
the early part of the last century, what 
was known as the Concert of Europe 
assumed a general direction of European 
affairs in times of crisis; but organiza- 
tion for regulating ordinary peace-time 
relations was wholly lacking. Soon after 
the middle of the century, as the 
progress of inventions began to draw 
peoples nearer together, we began to get 
some permanent organizations. An 
International Telegraphic Union, 
formed in 1865, still exists as the 
International Telecommunications 
Union; and the Universal Postal Union, 
formed in 1874, is still functioning 
smoothly. 

Such successes led quite naturally to 
attempts to form international organiza- 



tion of a more general character. The 
series of Peace Conferences held at The 
Hauge in 1899 and 1907-the Con- 
ference projected for 1914 never met— 
represented a feeble effort in this direc- 
tion. Far more ambitious was the 
League of Nations which began to func- 
tion in 1920. In the course of twenty 
years, it laid many useful foundations. 
Looking back on the period, its failures 
can easily be exaggerated— in some part 
they were due to the abstention of our 
own country. Yet the successes were 
notable, and they paved the way for a 
new effort to be undertaken when a 
disastrous World War had intervened. 

The United Nations follows in the 
footsteps of the League of Nations. 
Indeed, its Charter is in a sense a revised 
version of the Covenant. I am not 
disposed to overstate the prospect 
created by such a world organization. It 
still lacks universality. It is crippled by 
limitations, some of them formalized in 
its Charter, some of them due to 
divisions among peoples which the 
Charter cannot erase. Of course failures 
are to be expected— that is true also of 
the Government of the United States, 
though it is one of the most stable and 
successful governments in the world. 
Yet failure does not always denote the 
unwisdom of initial effort, and if the 
United Nations can be kept functioning 
its successes may far outbalance its 
failures. A prospect exists, therefore, for 
a greatly strengthened international law 
to serve the interests of a community of 
States, more integrated than it has ever 
been in the past. 

I think one can safely speak today of 
a growing body of constitutional inter- 
national law. Even since 1945, great 
progress has been made in this direction. 
The Charter of the United Nations is 
more than an ordinary international 
treaty. Some of its provisions expressly 
envisage States which are not parties to 
it. And under the Charter a number of 
specialized agencies have been brought 
into relations with the overall Organiza- 



59 



tion— a feat which was never achieved 
by the League of Nations despite the 
anticipation put down in Article 24 of 
the Covenant 

One can also speak today of a great 
volume of international legislation 
which orders our international inter- 
course. It is true that we do not have an 
international parliament exercising legis- 
lative functions analogous to those of 
the Congress of the United States or of 
the Parliament at Westminster. Yet it 
would be a mistake to draw from this 
fact the deduction that we have no 
legislation operating across national 
frontiers. Over almost a hundred years, 
a clear-cut legislative process has been 
developed; after preparations which are 
frequently very protracted, representa- 
tives of many States assemble in an 
international conference, and they often 
succeed in reaching agreement on legis- 
lative texts which later become opera- 
tive in consequence of their ratification. 
International legislation is like national 
legislation in that there is no require- 
ment that it be universally applicable, or 
that it should bind those who do not 
assent to it. 

Thanks to this international legis- 
lative process, we have today a great 
volume of world law, some of it 
accumulated over a period of many 
years. Unfortunately, it is little known. 
Even writers on international law often 
ignore it, so that we cannot be too 
severe in our reproof of those lay 
writers and speakers who advocate the 
creation of a vague "world law" without 
taking account of what we have already. 
In a series of fat volumes entitled 
"International Legislation," I have 
attempted to collect the legislative texts 
of the past thirty years; these volumes 
are in the Library of the Naval War 
College, and if you will glance at them I 
think you will be impressed with the 
extent of the achievement. 

During the past hundred years, 
progress can also be noted in the field of 
international adjudication. Here, too, 



we have suffered from lack of organiza- 
tion in the past. Yet in the course of a 
century, scored of ad hoc international 
tribunals have been created for the 
judicial application of international law, 
and with but few exceptions they have 
functioned with remarkable success. 
The fact inspired a robust movement for 
creating a permanent tribunal to which 
States might take their differences for 
adjudication according to law. The Per- 
manent Court of Arbitration, created in 
1899, as a consequence of this move- 
ment, was indeed a feeble step; yet for a 
quarter of a century, it yielded some 
results. If it is now somewhat moribund, 
it still exists with the support of more 
than forty States. The Central American 
Court of Justice, created under a Con- 
vention of 1907, had a checkered career 
and expired at the end of a decade. 

A more important step for strength- 
ening international law was taken in 
1920 when the Permanent Court of 
International Justice was created. For 
almost twenty years before the recent 
war, it functioned actively to the gen- 
eral satisfaction of the world. As I was 
for ten years a judge of this Court, it 
was a happy day for me when the 
Conference at San Francisco decided to 
take the Court over as an organ of the 
United Nations, and to annex its 
Statute, slightly refurbished, to the 
Charter. It was rechristened the Interna- 
tional Court of Justice, but the chain of 
continuity was not broken. This Court 
is now in session at The Hague, dealing 
with the Corfu Channel Case between 
the United Kingdom and Albania— a 
case of great interest to naval officers. I 
am now engaged in writing the story of 
its activities during its twenty-seventh 
year. 

I do not minimize the difficulty of 
persuading States to confer on the 
World Court jurisdiction over their legal 
disputes. In 1945, as in 1920, a deter- 
mined effort was made to write into its 
Statute provisions which would have 
invested the Court with what we call 



60 



"compulsory jurisdiction"— i.e., jurisdic- 
tion independent of States' consent 
given at the time. While that effort 
failed, provisions were adopted to en- 
able States desiring to do so to confer 
such jurisdiction on the Court as be- 
tween themselves, and thirty-two States 
are now bound by declarations which 
have this effect. It is to me a matter for 
regret that the declaration made by the 
United States in 1946 was narrowed by 
two frustrating reservations, one of 
which would disable the Court from 
exercising jurisdiction over a dispute to 
which the United States is a party if the 
United States declares the dispute to 
relate to a domestic matter. Fortu- 
nately, this American example has not 
been followed by many other States. 
Despite such difficulties one can only 
conclude that very considerable progress 
has been made in this matter. 

More encouraging, perhaps, is the fact 
that general agreement now exists in the 
world on the basic features of interna- 
tional adjudication. Opinion is unani- 
mous as to the nature of the judicial 
function, and as to the essential elements 
of the procedure to be followed. Nor is 
there disagreement concerning the obli- 
gation of States to comply with a judg- 
ment of an international tribunal. As a 
matter of history, the record of such 
compliance over the years is quite re- 
markable. If there have been a few cases 
in which losing States have refused to 
carry out international judgments, they 
are the exception and not the rule. Not 
once has any State defied the World 
Court by declining to abide by its judg- 
ment declaring the applicable law. 

I have spoken of the growth of a 
constitutional international law for the 
community of States, of the develop- 
ment of a fecund process of interna- 
tional legislation, and of the reassuring 
record of international tribunals. Let me 
now say a word concerning the vast 
number of bipartite treaties by which 
States have sought to regulate their 
conduct. 



I suspect that most of us do not 
appreciate the number of treaties in 
force in the world at any given time. 
Some twenty years ago, a colleague of 
mine estimated that not less than fifteen 
thousand treaties were then in force. I 
believe his estimate today would go 
beyond that figure, though the precise 
status of some treaties may be in doubt. 
The Department of State is now issuing 
an excellent publication entitled United 
States Treaties and Other International 
Acts Series. If you will leaf through the 
recent numbers of that Series, I think 
you may be surprised at the extent of 
your American treaty law. Such bi- 
partite treaties are followed and applied 
in every-day life as a matter of course. 
Rarely, in time of peace at any rate, 
does any State refuse to meet its treaty 
obligations as it understands them to be. 
No country wishes to have the reputa- 
tion of violating its pledged word. 

Two facts are outstanding from this 
review: first, that judgments of interna- 
tional tribunals are as a rule always 
complied with; and second, that treaty 
obligations are habitually met. 

There remains another field in which 
international law has been and con- 
tinues to be developed— the field of 
customary law. When over a consider- 
able period of time we find that a 
number of States have followed a course 
of action in the belief that they were 
acting in accordance with what the law 
ordains, we can say that a customary 
rule of law has come into being. Such a 
situation must be appreciated, of 
course, and the appreciation must be 
made by men trained in legal technique. 
I do not wish to exaggerate the extent 
to which existing international law is 
based on practice evidencing custom, 
but within limits this must be recog- 
nized as one of the ways by which law 
accumulates. 

Perhaps, I should illustrate this point. 
Over a course of many years, numerous 
States asserted jurisdiction over a part 
of the seas bathing their coasts: 



61 



gradually, the range of cannon-shot was 
taken as the limit of such jurisdiction, 
and in the nineteenth century this range 
came to be measured in terms of leagues 
or miles. The States of the world are not 
agreed on the number of miles— some 
take three, some take more; but there is 
now a rule of customary law that the 
marginal sea forms part of the territory 
of a littoral State, subject only to the 
innocent passage of the vessels— at 
least the merchant vessels— of other 
States. 

What I have said may be summarized 
in a statement concerning the sources of 
International Law. Basing myself on 
Article 38 of the Statute of the Interna- 
tional Court of Justice, I must put first 
"international conventions, whether 
general or particular, establishing rules 
recognized by the States concerned." 
Then a second source is "international 
custom, as evidence of a general practice 
accepted as law"; these are the words of 
the Statute, but I should prefer to say 
"international practice, as evidence of a 
general custom accepted as law." Then 
the Statute lists "the general principles 
of law recognized by civilized na- 
tions"— this seems to mean that the 
Court may apply principles of national 
law; as all nations are "civilized," 
though not in one mould, perhaps the 
limitation in the Statute is a bit in- 
vidious. 

Fourth and fifth sources are put 
down in the Statute as "judicial deci- 
sions and the teachings of the most 
highly qualified publicists of the various 
nations"; but these are referred to as 
, only "subsidiary means for the deter- 
mination of rules of law." International 
judicial decisions do not narrow down 
from precedent to precedent as do the 
decisions of national courts in our com- 
mon law. A case seldom involves a 



situation precisely analogous to that of 
a previous case, and precedent plays less 
of a role in international adjudications 
than in the work of national courts. 

As to the teachings of publicists, I 
would suggest that one must be on his 
guard. Few are writers whose works can 
be used without careful attention to 
their nationality, the date and place of 
their writing, and the circumstances 
which inspired it. Writers, even dead 
ones, seldom deserve the compliment 
paid in calling them "authorities." In 
this country, the treatise published by 
Wheaton a century ago is outstanding- 
it has gone through many editions, and 
has been widely published in transla- 
tions—and yet I should hesitate to con- 
sider it authoritative. 

If you wish to have at hand a useful 
readable treatise which is not too bulky 
for following the development of inter- 
national law, I can suggest two such 
small volumes to you: "The Law of 
Nations," by my Oxford colleague Pro- 
fessor J.L. Brierly— now in its third 
edition; and "International Law" by my 
friend Charles G. Fenwick, of the Pan 
American Union— also now in its third 
edition. I can also suggest two periodi- 
cals which you may wish to have at 
hand: the weekly Bulletin of the De- 
partment of State, and the quarterly 
American Journal of International Law, 
over the past forty-two years. 

My lecture today is of an introduc- 
tory character. I have sought to give you 
only a general account of the legal 
foundations of international relations, 
without going into the substantive con- 
tent of our existing law. In our future 
work we shall have occasion to muster 
some of its precepts and principles, and 
to relate them to the concrete situations 
with which a naval officer is frequently 
faced. 



t 



62 



SOVIET INTERPRETATION AND APPLICATION 



OF INTERNATIONAL LAW 



John N. Hazard 



Soviet lawyers did not begin thinking 
about international law until the year 
1922. The Minister of Justice in that 
year gave a speech to all of the lawyers 
in the capital at Moscow, outlining the 
tasks of Soviet legal research, and he put 
first among those tasks the study of 
International Law. He recommended to 
the law professors who were there 
before him (most of them professors 
from before the Revolution, who had 
continued on after the Revolution) that 
they study the two volumes of treaties 
which the Ministry of Foreign Affairs 
had already published, in which he said 
there were seventy-two documents, and 
that they try to draw some generaliza- 
tions from this experience. He also said 
that he thought the two volumes would 
be found to open a great many new 
perspectives and that they might pro- 
vide some truly practical directives for 
Soviet foreign policy. In short he told 
the law professors before him that he, as 
Commissar of Justice, thought there 
were to be found in international law 
some practical advantages for Soviet 
foreign policy. He came out, then, for 
the pragmatic approach: International 
Law was to be useful to Soviet 
politics. 

Why the year 1922- why did this 
not happen earlier? As you all know, 
the Revolution was in the fall of 1917. 
The Soviet lawyers were very scornful 



of international law in the years 
between 1917 and 1922. In accordance 
with their Marxist training, they felt 
that law was an instrument of policy— 
whether it be domestic law (what we 
call "municipal law'') or international 
law. They said: "Look at who the 
people are on the scene today who are 
using international law. They are the 
great capitalist powers." Therefore, 
since international law in their way of 
thinking was an instrument of policy it 
must be capitalist in its purposes; it 
must be designed to achieve capitalist 
ends, which they said were certainly not 
Soviet ends (Soviet ends being opposed 
to capitalist ends and heading towards 
Socialist, and, ultimately, Communist 
ends). So they felt this was an instru- 
ment not for them. It was an instru- 
ment, if you will, which had been 
created by enemies, was being used by 
enemies and was something which the) 
should leave alone. 

The spring of 1918 provided some- 
thing of a test because the German 
Army kept marching into Russia. The 
question was: How should they stop the 
German Army? The first approach of 
the Bolshevik-Communist leadership 
was appeal to world public opinion. 
They sent Trotsky and a group of 
workers and peasants— very simple 
people, indeed— out to Brest Litovsk to 
talk with the Germans and to appeal, 



63 



over the heads of the Germans, to the 
people of the world. They hoped that 
through this propaganda barrage they 
might be able to stop the Germans— but 
they did not stop them. The Germans 
continued to march. So Lenin, with 
considerable opposition in his own 
party, reached the conclusion that the 
only way to stop the Germans was to 
sign a peace treaty with them. In other 
words, he utilized one of the basic 
institutions in international law— 
namely, a peace treaty— to stop the 
Germans. He did that and they stopped! 
He had found that by using interna- 
tional law in this simple fashion he had 
achieved an end which he thought 
important to Soviet Russia. 

In 1921, some years later, recogni- 
tion was accorded the new Soviet gov- 
ernment by a great many countries of 
Western Europe, and naturally, in the 
course of recognition, agreements were 
necessary to regulate the relationships 
between the States which had recog- 
nized Russia. Then commercial trade 
began. It became necessary to have a 
good many commercial treaties. It was 
in this fashion that the seventy-two 
treaties found their way into the two 
volumes which the Commissar of Justice 
said in 1922 should be studied. In effect 
he was saying: "We have acted— now 
find out what we have done." This is a 
well-known approach to life, as some of 
you who are philosophers know, and 
one that might be called "pragmatism. " 
You act and then you try to find out 
the philosophical basis for your action. 
So the Commissar was saying: "Let us 
do this because we may, in so doing, 
discover how to utilize this new body of 
principles to our advantage." 

I think that in these first years it is 
obvious that the Soviet policy makers 
had reached the conclusion that interna- 
tional law, at least in some of its 
aspects, offered means of furthering 
Soviet interests. Soviet scholars were 
therefore asked to study the origin of all 
of the rules of international law for the 



purpose of deciding which of them 
might be considered useful in the future 
and also which of them might be con- 
sidered dangerous and therefore should 
be disavowed or ignored. 

This attitude which appeared in 1922 
has remained the basic attitude of 
Soviet scholars and Soviet diplomats to 
the present day. It has been very simply 
stated— so simply stated that I think 
they have created a disadvantage for 
themselves in putting it into such words. 
Their Professor Feodore I. Kozhev- 
nikov, who is now the Soviet judge on 
the International Court of Justice at 
The Hague, wrote in his book in 1948 
this brief explanation of the Soviet 
attitude towards international law: 

Those institutions in interna- 
tional law which can facilitate the 
execution of the stated tasks of 
the U.S.S.R. are recognized and 
applied by the U.S.S.R., and those 
institutions which conflict in any 
manner with these purposes are 
rejected by the U.S.S.R. 
That is a perfectly frank statement. I 
think that since 1948 they may have 
regretted that they let Professor 
Kozhevnikov publish the statement for 
it has not appeared in the more recent 
books in quite such precise terms, al- 
though the attitude is certainly present; 
that is, the Soviet Union takes what is 
useful and discards that which is not 
useful. They do not accept, then, the 
whole garment; they tear it into pieces, 
take the pieces that meet their needs 
and throw the rest in the basket. If we 
understand that this is the principle on 
which they operate— that international 
law has some real value to them, not all 
of it but part of it (which is certainly no 
longer the principle with which they 
started that no part of international law 
was of any value), we are prepared to 
move on to some of the details which, I 
think, will indicate how they have 
utilized some of the institutions of 
international law and how they have 
rejected others because they do not 



64 



think that they meet their purposes. 

Let us approach, first, the question 
of the delineation of frontiers on land, 
on sea, and in the air. There is no 
frontier of the Soviet Union today 
which is not delineated by some docu- 
ment in international law (the reason 
that I have the map here is so that you 
may see the U.S.S.R. right before you). 
This does not mean that the Soviet 
officials themselves have written the 
treaties, although they have been very 
active in negotiating treaties which 
establish frontiers. Some of the fron- 
tiers—particularly the one with China— 
the great one running from the Afghan 
frontier to the Pacific— rest on Czarist 
international treaties, the first treaty 
being that of 1727 and there being a 
good many since that time. The Soviet 
authors say very definitely in their 
books that this is an example of a 
situation in which international law, 
established by a Czarist treaty, has met 
their purposes. So they rely upon inter- 
national law to establish their frontier 
with China. 

On the western side they did not 
have an established frontier because 
there had been a great deal of change 
after the First World War and a series of 
little wars. So in 1921 they set about to 
establish frontiers with the Baltic 
Republics, with Poland, and then with 
the countries in the Near and Middle 
East. Here, then, they have utilized 
international law, some of it antedating 
the Revolution, to establish their land 
frontiers. Of course after the last war 
they reestablished those western fron- 
tiers through another series of treaties 
for a very conventional and interna- 
tional law approach to the establish- 
ment of frontiers. 

The treaties have been less numerous 
on the seas. There are some examples, 
such as the treaty with England of 
1930, which had to do in the main with 
English fishing vessels' rights in waters 
of the Arctic. The treaty provided that 
the English fishing boats might fish to 



within three miles of the low-water 
mark along the northern coast of the 
Soviet Union. In establishing this three- 
mile limit for the English in this treaty, 
the Soviet government stated that it 
retained for itself freedom of action to 
claim whatever frontier it might wish 
generally under international law. In 
most of their dealings since that time 
Soviet officials have maintained a 
twelve-mile limit. 

In the Soviet statute, which is only a 
domestic statute but which establishes 
the regime to be applied within the 
twelve-mile limit, they do not claim that 
they own as their own territory the 
maritime belt to a twelve-mile width. 
They do, however, claim that any ship 
that enters that twelve-mile belt is sub- 
ject to examination of her documents. 
Also, if she has any Soviet citizens on 
board who are leaving the country 
without permission, these citizens may 
be removed. In a way the U.S.S.R. has 
shown her very practical approach by 
not saying whether she does or does not 
consider this her territory. The one 
thing which she does say for all the 
world to read is that if you come within 
that twelve-mile limit you are going to 
be searched, and if the searchers find 
Soviet citizens on board, they are going 
to be taken off. That is very practical 
and I suppose that from the Soviet 
point of view that is enough, for they 
have made clear their intent. They have 
also provided that within that twelve- 
mile limit their own border patrol ships 
may run without lights at night. 

On the sea again, but now in terri- 
tory where they cannot claim exclusive 
control— for example, the Caspian Sea, 
the Black Sea and the Baltic Sea— they 
have made an effort to negotiate treaties 
which would close those seas to all 
powers except the nations surrounding 
them; i.e., except the so-called "Littoral 
States." In 1935, they made a treaty 
with Iran concerning the Caspian Sea. 
This provided that no vessels except 
those of the Iranian and Soviet States 



65 



might sail upon that sea. Of course they 
have never been quite so successful in 
closing the Baltic and Black Seas, but 
they have asserted constantly in their 
books that in their opinion these should 
be closed seas. All those who know 
anything about the Soviet position are 
now waiting to see what you people will 
do this summer when you sail your 
ships into the Black Sea to visit the 
Turkish ports on the north shores of 
Turkey. When I read about the summer 
plan in The New York Times, I con- 
cluded that our Navy has been reading 
the Soviet textbooks, as I am doing, and 
has thought it desirable to try out the 
Soviet attitude on the Black Sea. For 
some of you on board those ships it 
may be an interesting summer. It is clear 
what the Soviets would like to do 
because they tried to induce Turkey to 
permit a Soviet fortress at the mouth of 
the Black Sea, which was to "aid" 
Turkey in controlling the Straits. You 
can imagine how the Soviet forces 
would aid Turkey! The Straits would 
have been closed completely to warships 
of non-Littoral States. The Soviet re- 
quest was never granted by the Turks, 
but it does indicate the Soviet attitude: 
The U.S.S.R. would if it could, close to 
Naval forces the two accesses to the sea 
frontiers of their country through the 
Black and Baltic Seas. They have al- 
ready effectively closed the Caspian Sea 
in permitting only Persian ships, in 
addition to their own, to sail it. 

In the air, the Soviet claim has been 
the established international law prin- 
ciple that the air space over a territory is 
the property of the power that owns the 
territory. They have absolutely refused 
to consider the proposal of the Interna- 
tional Civil Aviation Organization to 
establish the five air freedoms which 
would permit a relaxation of that rigid 
principle. So, again, this aspect of inter- 
national law meets their needs, and it is 
espoused. 

Take the enormous Arctic frontier. 
What is their attitude on this? Here, 



they have been a little ingenious, al- 
though they hasten to add that they are 
following Canadian practice— that this is 
not their idea, but Canada's. It is true 
that, chronologically, one Canadian 
senator suggested the idea first in the 
Canadian Parliament and that it was 
later adopted in principle by the 
Canadian Parliament. The U.S.S.R. has 
declared that all land already discovered 
and to be discovered within the Arctic 
sector would be Soviet territory, the 
Arctic sector being that part of the 
Arctic which lies between a line drawn 
from the Bering Straits on the eastern 
end and the border of Norway on the 
western end to the North Pole. Any 
land within that area, even if not dis- 
covered, would, under this Soviet 
declaration, be claimed as Soviet terri- 
tory. Likewise, of course, they are 
prepared to permit Norway, Canada, 
Denmark (to the extent that she con- 
trols Greenland), and so on, to have 
their little sectors within which the 
Soviet Union would not interfere. 

Take another area in which Soviet 
policy makers have been interested in 
international law; namely, in the treat- 
ment of prisoners of war. When the war 
with Germany began, they found them- 
selves in a difficult position because 
they had never reaffirmed the Czarist 
signature upon the Hague Convention 
relating to prisoners of war. They had 
no formal position in international law 
under which they could claim protec- 
tion for their soldiers when prisoners of 
war of the enemy. But Professor Eugene 
A. Korovine, who wrote the standard 
Red Army Manual on International 
Law, claimed that even though the 
Soviet government had not taken the 
trouble (as it did with the frontier with 
China) to reaffirm the Czarist signature 
and claim that it was expecting all rights 
which might exist under the Hague 
Convention, it now claimed that the 
principles of the Hague Convention had 
become so well established in interna- 
tional law that the Soviet Union could 



66 



rely upon them to demand protection 
for its own soldiers and sailors when 
captured by the enemy. By this method, 
the U.S.S.R. adopted a treaty which it 
had not previously taken into its arsenal 
as something on which it wished to rely. 

After the war, when the matter was 
renegotiated in the famous Geneva Con- 
ventions of 1949, the U.S.S.R. sent a 
vigorous delegation under a general as 
well as delegations from the Ukraine 
and Bielorussia. In their textbooks 
Soviet authors now claim that the 
Geneva Convention of 1949 is largely 
the work of their own people and that it 
was achieved in the face of opposition 
from what they call "the Anglo- 
American block." Not having been at 
Geneva and not having studied this 
matter in detail, I am not able to give 
you material to refute this charge. What- 
ever its foundation, the fact that it is 
made indicates that Soviet policy 
makers are very proud of the Geneva 
Conventions and seem to feel that they 
established principles of law to which 
the Soviet government wishes to adhere. 
It is to be noted, however, that the 
U.S.S.R. signed the Geneva Conventions 
with a reservation that no prisoner of 
war who had violated the principles of 
the Nuremberg Trial could claim protec- 
tion under the Conventions. 

Take the question of guerilla warfare. 
This is one in which Soviet authors 
profess to see a class interest. They have 
been very unhappy about the lack of 
protection in the Hague Convention of 
guerillas who are found operating be- 
hind enemy lines without a uniform 
well after the enemy has rolled over the 
territory. Their argument is that this 
lack of protection was established by 
the German Imperial Staff years ago 
because it facilitated the German type 
of warfare— namely, warfare by troops 
in uniform under rigid discipline— and 
that the Germans were by no means 
going to have irregulars shooting at 
them from the rear in this fashion. 
Therefore, after this last war Soviet 



authors asked in their legal periodicals 
for a revision of the law relating to 
guerillas, or "partisans" as they always 
call them, so that the law would protect 
partisans even when wearing no uni- 
forms and long after the front lines had 
passed beyond their little villages. The 
Soviet authors said that the capitalist 
powers had refused to move in the 
direction of protection because it was 
through partisans, or guerrillas, that 
revolutionary movements were con- 
ducted in Malaya and in the Philippines. 
On the basis of that charge, the Soviet 
lawyers claimed that a change in inter- 
national law was desirable from their 
point of view because it would further 
the interests of world revolution. 

Take, now, diplomatic intercourse. 
This has been very difficult for the 
Soviet government because so little of 
the law relating to diplomatic inter- 
course is to be found in treaties. It is 
largely customary, except, of course, for 
the ranking of diplomats in the Treaty 
of Vienna of 1815. The question in this 
field in Soviet minds has always been: Is 
there a disadvantage to the U.S.S.R. 
lurking in the customary law relating to 
diplomatic intercourse? They have 
directed their scholars to do research in 
this area to try and determine what 
disadvantage might be found if such and 
such principles were accepted. Gener- 
ally, their attitude has been one of 
acceptance. 

In 1927, they enacted a statute 
saying that they would grant to repre- 
sentatives of foreign powers all diplo- 
matic privileges under international law 
if their diplomats were granted the same 
privileges in the countries from which 
these representatives came. They have, 
however, from time to time permitted a 
series of what we consider violations of 
the general principles of international 
law relating to diplomatic intercourse. 
They have also tried a few experiments. 
For example, they said that they saw no 
reason for having ambassadors on the 
one hand and ministers on the other 



67 



hand; they said "let's make everybody 
equal." They called their ambassadors 
and ministers by a single generic term. 
The difficulty with this was that every- 
one said: "Well, this does not conform 
to the Code of the Congress of Vienna. 
We do not know what these things are. 
So at any dinner party they must sit at 
the foot of the table because they have 
no rank. " Thus, in any general relation- 
ships in the diplomatic community the 
Soviet diplomats were always last. Of 
course, this was the very last thing the 
Soviet government wanted, so they then 
conformed to the international practice 
of designating their representatives as 
"ambassadors" or as "ministers." In this 
particular case international law has 
moved on for there is hardly a State left 
where there is not an ambassador. In 
effect the equality of diplomats which 
the Soviet government originally 
espoused is little by little coming about. 
The U.S.S.R. has also introduced 
into the field of diplomatic intercourse 
another point which it claims to be an 
innovation, and that is the demand that 
there be diplomatic immunity accorded 
commercial representatives of the Soviet 
type States. If you study your interna- 
tional law, you will find that in general 
(although it is not absolutely certain) if 
a diplomat engages in commerce, he is 
not immune from suit on his contracts 
(one of the historic examples was when 
the Persian ambassador sold rugs at the 
back door of his Washington home). 
Diplomats are only immune as to their 
diplomatic activities and not as to any 
commercial activities which they may 
conduct. Yet, the Soviet government 
was in the position of conducting all of 
its commerce, because of its Socialist 
attitude which took the form of the 
monopoly of State trade, through 
agents of the State. Under international 
law these agents were to be treated 
differently from the ambassadors of the 
Soviet Union, yet the Soviet govern- 
ment felt that it was desirable that its 
representatives be treated exactly alike. 



Probably this desire for protection arose 
partly because, as we have since found 
out, the diplomatic agents and commer- 
cial agents had been engaged in a good 
many things other than representation 
of their States. Commercial agents seem 
to have been particularly suited for 
espionage work because of the type of 
travel that they do in conducting com- 
mercial affairs. 

Most of the States of the world 
refused to give diplomatic immunity to 
Soviet commercial agents, at least under 
law other than that established by a 
treaty. If States have been able to get 
something in return which they thought 
worthwhile, they have granted diplo- 
matic immunity to Soviet commercial 
agents. These States have said: "Well, 
we will give your commercial agents 
diplomatic immunity. But in any event 
we will hold the Soviet commercial 
mission responsible in the courts of our 
country on any contract which it may 
make if the contract is broken. So the 
individual is free from arrest— that is, he 
is not put in jail or he is not personally 
sued but his mission may be sued." 

You will find treaties relating to this 
subject varying in accordance with the 
distance from Moscow of the country 
concerned. The countries closest have 
had to accept the most, while the ones 
farthest away (that includes the United 
States, of course) have accepted none of 
it whatever. We give no diplomatic 
immunity of any kind to the commer- 
cial agents of the Soviet States. On the 
contrary, we have refused to let them 
establish commercial missions in the 
United States, except during the war, 
and they have to conduct their commer- 
cial affairs through an American corpo- 
ration, The Amtorg Trading Corpora- 
tion, established under the laws of the 
State of New York, and therefore sub- 
ject to all of the rules of an ordinary 
domestic corporation. 

As to official secrets, what is the 
Soviet attitude in international law on 
this subject? I think that here we find 



68 



the reflection of both Russian history 
and Soviet political theory. I am one of 
those who think that Professor Toynbee 
of England is probably right when he 
says that we cannot overlook the in- 
fluence upon Russian mentality of the 
long history of Russia, during which 
Russia has been invaded frequently. 
Russians seem to think that every for- 
eigner is the advance guard of an inva- 
sion—particularly if he happens to be a 
German or a Japanese. This is one of the 
things which I believe explains present 
attitudes. Soviet leaders are unreason- 
ably frightened of German rearmament 
because of this long history. Professor 
Toynbee says that we cannot overlook 
that fact. Together with the influence of 
history there is the influence of Soviet 
political theory. This theory teaches 
that as the capitalist powers see the 
Soviet Union (a Socialist power) de- 
velop and become strong, they will 
conclude that the U.S.S.R. cannot be 
permitted to advance to a position of 
strength. The capitalist powers are ex- 
pected to fight a preventive war to 
reduce the Soviet system to impotency. 
Because of these two influences— one 
historical and one based upon political 
theory— Soviet policy makers seem to 
see capitalists under the bed far more 
than any rational person would think 
possible. This position has been evi- 
denced in the Soviet attitude towards 
the international law relating to com- 
munications between representatives of 
foreign states and their own people. 
This question of communication 
reached an important point for the 
United States in 1933, when we recog- 
nized the U.S.S.R. We were going to 
send a great many engineers to the 
U.S.S.R. to conduct the work, for 
example, of building the great dam 
across the Dnieper River and to do 
other commercial tasks. Mr. Roosevelt 
was very worried lest the Soviet attitude 
on official secrets put some of these 
American engineers in jail when they 
showed normal American curiosity 



about the operations of the plants in 
which they were working. So he turned 
to Mr. Litvinov, when Mr. Litvinov 
came from the U.S.S.R. to seek recogni- 
tion, and said; "I must have some sort 
of guarantee that Americans, in the 
normal course of ferreting out informa- 
tion about which they are naturally 
curious— if they find some and com- 
municate it to their employers or even 
to the American government— will not 
be prosecuted as spies." So we do have 
in our exchange of letters between Mr. 
Litvinov and President Roosevelt the 
paragraph that says as follows: 

The right to obtain economic 
information is limited in the 
U.S.S.R., as in other countries, 
only in the case of business and 
production secrets and in the case 
of the employment of forbidden 
methods; i.e., bribery, theft, 
fraud, etc., to obtain such infor- 
mation. 
Then Mr. Litvinov goes on and says: 
The category of business and 
production secrets naturally in- 
clude the official economic plans 
in so far as they have not been 
made public, but not individual 
reports concerning the production 
conditions and the general condi- 
tions of individual enterprises. 
This would, then (and it did), permit 
American engineers to show an interest 
in what was going on in the factory in 
which they were working and getting all 
of the information necessary for their 
participation without being treated as 
having violated the Official Secrets Act 
of the Soviet Union. 

That was in 1933. Since that time 
there has been a considerable tightening- 
up of the situation. In 1947, right after 
the war, the Soviet government enacted 
a law in which it listed the matters 
which it considered "State secrets." The 
act of any Soviet citizen giving informa- 
tion of this kind was punishable under 
the Criminal Code. When you read that 
list you will find that it goes beyond 



69 



anything you have ever imagined as a 
secret. There is, of course, included 
military information, but the list goes 
on from that to other areas that are 
new: industrial production figures for 
the whole or a part of the U.S.S.R. (in 
other words, it cannot be told how 
many shoes are produced without vio- 
lating the Official Secrets Act); agricul- 
tural production figures (there can be 
no telling of the sugar beet production); 
information on domestic trade (it can- 
not be told how much butter is sold, for 
example, in the city of Gorki during the 
month of January); information on 
foreign trade (it cannot be told how 
much yak wool the Soviets buy from 
Afghanistan); information on technical 
improvements not yet released. 

The very next day after listing the 
types of information to be kept secret 
there was added a second statute (I do 
not know why it was separate) which 
said that if any of this information 
happened to be in documents which 
were lost by a Soviet citizen through 
negligence, he could be prosecuted for 
violation of the Official Secrets Act. 
You can see from these laws that Soviet 
policy makers have become very severe 
about disclosure of information relating 
to their economy. Of course, it is not a 
violation of the law to communicate 
something which has already been in the 
newspapers and which their domestic 
censorship has already passed, but it is a 
violation to communicate something 
which their censorship has not already 
passed. In order to make this restriction 
effective, it was provided in 1947 that 
no Soviet citizen might communicate 
economic information destined for for- 
eigners to anyone except the Ministry of 
Foreign Trade, which then in turn 
would give such parts of it as were 
desirable to the foreign government or 
the foreign business man concerned. So 
if you go to the U.S.S.R. seeking a 
contract, and you are, for example, The 
General Electric Company, you cannot 
ask for this information from one of the 



plant managers without violating the 
statute— you get the information only 
from the Ministry of Foreign Trade. 

I think that this attitude toward 
official secrets is an explanation of 
Soviet feeling about the scheme for 
atomic energy control which has been 
proposed in the United Nations. I 
believe that Soviet policy makers think 
of atomic energy not only as a war 
potential, but as a very important ulti- 
mate source of power— particularly in 
the great desert area of their country 
where there is no other source of 
energy. Lenin said early in the 1920s 
that the key to the economy of the 
Soviet Union as of that time was elec- 
trical energy, and I think that this 
attitude is carried over to today. Soviet 
leaders feel that the key to an under- 
standing of their economy, which they 
are going to protect in every possible 
way by making it a crime to divulge 
secrets about it, is the amount and 
location of this new source of power. 
Hence, any scheme for a control of 
atomic energy which involves inspection 
is important— not alone because it might 
disclose where the bombs are being 
made, but it might tell where the power 
stations are located as well as their 
capacity. From the Soviet point of view 
the location and capacity of a power 
station is important— perhaps almost as 
important as the location of the manu- 
facture of bombs. This concept of 
secrecy of power resources is a com- 
pletely foreign one to us, as you well 
know, because we can read in American 
magazines where all of the power sta- 
tions of the United States are located 
and just exactly what their production 
is. 

There is another matter of concern 
to international law, the Soviet espousal 
of absolute sovereignty. "Sovereignty" 
is a very popular word in international 
law. In fact it was— and probably still 
is— indicative of one of the basic princi- 
ples of international law during the last 
century and in the 20th century. I 



70 



suppose no slogan has been more popu- 
lar before the bar of public opinion 
throughout the world than the preserva- 
tion of sovereignty. In the main it was 
the principle of international law on 
which the Little Powers relied in their 
struggle with Great Britain during the 
last century and on which the Latin 
American countries relied in opposing 
us. It provided the basis for a very 
powerful argument. It meant that little 
countries must be left free to conduct 
their affairs without having the big 
countries interfere in those affairs; 
hence, letting them preserve sover- 
eignty. We in the United States have 
been one of the strongest supporters of 
this principle, as you well know. We 
even refused to enter the League of 
Nations after the last war because we 
thought this would be a threat to our 
independence, and, hence, to our sover- 
eignty. We even now are reluctant to go 
before the World Court in all situations. 
We have a provision that we will accept 
the jurisdiction of the International 
Court of Justice, or World Court, only if 
we in our own opinion consider that the 
case before it does not concern a matter 
of our own domestic affairs. So we are 
for sovereignty, too. Yet, we have 
reached the conclusion that we must 
abandon sovereignty in some measure in 
order to unite and to find greater 
strength in cooperation against aggres- 
sion. We who are also for sovereignty 
say that there are some circumstances 
when nations must delegate their sover- 
eignty to an international agency. They 
must unite in order to protect them- 
selves and, therefore, to preserve their 
sovereignty. This, then, provides a little 
background for consideration of the 
Soviet position. 

The Soviet government has con- 
stantly maintained in its speeches in the 
United Nations, and in the law articles 
which its professors publish, that it is 
for sovereignty, the basic principle of 
international law, much more than is 
the United States, and that the U.S.S.R. 



is not prepared to see international law 
developed to a point where any aspect 
of sovereignty shall be relinquished. 
There is a long line of steps which the 
Soviet government has taken, indicating 
how in a practical way it will refuse to 
accept any change in international law 
on this subject. For example, it has 
refused to accept the compulsory juris- 
diction of the International Court of 
Justice under any circumstances; it will 
bring a case before the Court if it 
wishes, but it will not permit itself to be 
required to do so. It has refused to 
permit the International Court of 
Justice to interpret the Charter of the 
United Nations, saying that this is a 
matter for political agencies to inter- 
pret. It has refused to accept the bind- 
ing force of a majority decision in the 
Little Assembly of the United Nations. 
It has refused to permit the estab- 
lishment of an International Court of 
Human Rights, which would decide 
when the covenant of human rights has 
been violated, saying that this is a 
matter for each country to decide for 
itself. It has refused to submit to arbi- 
tration, as we understand it, although it 
claims that it submits to arbitration; 
however, when you study the arbitra- 
tion treaties which it has, there is never 
a third impartial person as the arbiter- 
there are just the two sides— and that in 
our parlance is not arbitration. So, all 
along the way the U.S.S.R. has reserved 
for itself its freedom to decide what 
aspects of international law it will 
accept and what aspects it will not 
accept— and it will do this through the 
interpretive process; it is not going to 
have any outsiders sit in judgment upon 
its interpretation but is reserving, as it 
says, its complete right of sovereignty. 
W.W. Kulsky in his article, which is 
on my reading list, says that the Soviet 
Union has preferred "old-fashioned in- 
ternational law" because of its emphasis 
upon the importance of sovereignty, 
whereas we, on the other hand, arc 
moving away from this concept to the 



71 



extent that we find it desirable to save 
our sovereignty, if you will, to protect 
ourselves against aggression. As a result 
of this difference of opinion, the gulf is 
widening between us and the Soviet 
policy makers— we moving towards col- 
lective security and they maintaining a 
rigid position, which was the position 
popular in the nineteenth century. 

I have now concluded my discussion 
of the circumstances in which the Soviet 
Union has been maintaining the old law 
to meet its needs of self-protection. 

Let us turn to the aspects of interna- 
tional law, as Soviet authors see them, 
which can advance Soviet interests 
beyond its frontiers. In this connection, 
I want to point out what you all know: 
it is the great dream of all Soviet policy 
makers that the Soviet system, or what 
they call the "world revolution," shall 
extend around the world. You know of 
these dreams of expansion. How do 
Soviet authors think that international 
law can help realization of these 
dreams? It is interesting that they look 
to the body of international law doc- 
trine as an instrument in their arsenal of 
expansion— not only as an instrument in 
protecting themselves, as we see in the 
last part of what I have just said by 
reference to old-established principles of 
sovereignty, but also as a means of 
expanding. Some of the areas in which 
they have done thinking in this sphere 
are particularly newsworthy today. 
Take Korea, for example. The Soviet 
Union wanted to try to keep the United 
Nations out of that conflict. How were 
they to do it in a way which sounded as 
though it were required by international 
law? Their argument was simply that 
both halves of Korea are to be found on 
opposite sides of what is only an armi- 
stice line— the 38th parallel. They say it 
is one country and when the north 
starts fighting the south, there is created 
the same problem which Abraham Lin- 
coln faced: it is just a civil war. In a civil 
war, as happened in our Civil war, we 
said to everybody: "You keep out" (the 



British included). When the British tried 
to get in, we succeeded eventually in 
getting some reparations out of them. 
So the doctrine is well established that 
foreign nations cannot legally intervene 
in a civil war— and particularly so under 
the Charter of the United Nations, 
which says that the United Nations shall 
not intervene in a matter of domestic 
concern. The Soviet position has been 
very simple: Korea is one unit; the 
north is fighting the south; the United 
Nations has come in and is violating the 
Charter and international law, generally, 
because it is intervening in a civil war. 
Soviet lawyers have absolutely refused 
to take into consideration the statement 
of the legal adviser to the United 
Nations, Mr. A.H. Feller to the effect 
that the 38th parallel became a de facto 
fronter; i.e., it was no longer just an 
armistice line. Hence, since it was a 
State frontier, when the north marched 
south it started not a civil war but a war 
between separate States; thus, it was 
something with which the United Na- 
tions could concern itself without 
violating its own Charter. 

One of the things which I want to 
ask this afternoon is: Does the same 
doctrine apply in Germany— Should the 
two halves of Germany start fighting 
today? Does it apply between Formosa 
and the rest of China? Does it apply 
between the north and south half of 
Vietnam? In other words, can we expect 
this same argument to be used in those 
three situations, all of which may within 
a relatively short time come into the 
news again? 

There is another direction in which 
Soviet authors have moved in which 
they think international law is to their 
advantage: they think it can be used to 
open the door to military aid to native 
revolt. On the one hand they seek to 
exclude the United Nations from par- 
ticipating in the war in Korea; yet, on 
the other hand, they want in some way 
or another to be able to participate in 
that war without violating the very law 



72 



that they are claiming on their side in 
opposing the United Nations. How are 
they going to do this? Just consider the 
international lawyers sitting down in the 
Soviet Foreign Office with their pencils 
and writing out the brief for the field 
commanders. 

This reminds me of a conversation 
with a citizen of a certain state, who 
said that his country always had an 
international lawyer on the bridge of 
every flagship so that the lawyer could 
support the admiral's commands with a 
good brief before the action was 
finished. Whether this was actually done 
I do not know, but there is somewhat of 
a temptation to do just that. Of course, 
we international lawyers think it would 
be the wrong approach— we would like 
to see it the other way around. But I do 
not want to conceal from you people 
who are going to be on the bridges that 
there is the possibility of making use of 
an international law professor on the 
bridge. 

What are the Soviet authorities doing 
to open the door for their participation in 
native revolts while keeping the Ameri- 
cans and the United Nations out? Well, 
they have expanded the concept of 
volunteers to the point that we in the 
United States have thought ridiculous. 
It happens that in international law 
there is no rule which requires a State to 
prevent her Nationals from enlisting in 
the army of another State. Certainly 
this audience knows well that a great 
many Americans enlisted under the 
banner of King George VI in the last 
war, either in Canada or directly in 
England; some also enlisted in the 
French Army. So there is a well- 
accepted principle of international law 
that an individual may join anybody's 
army without violating international 
law. If he takes an oath to the sovereign 
of that other army, he may lose his 
citizenship. However, that is not a prob- 
lem of international law but a problem 
of domestic law. 

In Korea, whole armies with their 



own officers appeared from China on 
the Korean side as volunteers. Right up 
to the end Arthur Dean, when he 
negotiated with the northern half in the 
tent at Panmunjom, negotiated with a 
Chinese general who was not there as a 
general of anything but a volunteer 
army. He made it very clear that he was 
not there representing the Chinese gov- 
ernment or the Chinese army but he was 
there representing this army of volun- 
teers. This is perfectly ridiculous to us. 
Yet, under international law, unfortu- 
nately, there is not anything that says 
that volunteers should be ten, twenty, 
one hundred, or a hundred thousand, or 
that at some point you have something 
other than volunteers because of sheer 
numbers. 

I remember sitting in some groups of 
international lawyers at the time in New 
York who said: "Should we not go into 
the United Nations and try to start the 
preparation of a treaty which would 
define "volunteers," at least quantita- 
tively, so that at some point too many 
volunteers change to an army of the 
government from which they have 
volunteered?" That is one of the doors 
that Soviet policy makers are trying to 
keep open for their participation in the 
kind of civil war situation which they 
think they have seen. 

There is another area which Soviet 
lawyers have tried to utilize: the possi- 
bility of opening the door to revolu- 
tionary subversion, i.e., the undercover 
participation of foreign agents in stirring 
up revolt rather than the formal partici- 
pation in an army as a volunteer in the 
actual fighting. In the early years, the 
Soviet government was very worried lest 
she be subverted, although she also had 
her Communist International which she 
was utilizing to try to subvert others. 
She drafted a proposed definition that 
one of the forms of aggression would be 
the undercover type of subversion by 
agents of foreign countries seeking to 
enter, or perhaps actually entering, the 
Soviet Union for that purpose. She 



73 



wanted to call this "aggression," and 
therefore declare it illegal under interna- 
tional law. This was before the war, 
when she was a weaker country. 

After the war, at the time of the 
Nuremberg Trial, when the charter was 
being drafted, the Soviet Union refused 
to accept that very definition which she 
had previously drafted when Mr. Justice 
Jackson from the United States sug- 
gested that subversion be one of the 
elements of aggression in measuring the 
guilt of the Nazis. It began to look at 
this point as if the shoe had been put on 
the other foot and that the Soviet 
Union was now so strong that she did 
not want to be excluded from the legal 
use of subversion, as she had previously 
wanted to exclude England and France 
from the legal use of subversion in her 
own country. You see that with a 
change in power relationships a change 
in attitudes toward principles of interna- 
tional law comes about. 

But what happened then? We put 
100 million dollars in our budget for the 
purpose of helping refugees from East- 
ern Europe. I was not on the inside and 
therefore I do not know what those 
refugees were supposed to do. But the 
Soviet Union thought that they were 
going to be trained to subvert her 
country. So her attitude then changed. 
She went back to the United Nations 
and said: "We want to press for the 
definition of aggression, which will in- 
clude this kind of work as aggression, 
and therefore make it illegal." So, 
within a short span of years we see her 
moving in one direction and then re- 
versing her field as the power situation 
changed. 

What about participation in interna- 
tional agencies? From the start the 
U.S.S.R. has been in the United 
Nations, as you well know. Most re- 
cently she has entered the International 
Labor Organization and also UNESCO, 
the cultural organization, What has she 
gained from doing this? It seems to me 
that she has obtained a platform for 



propaganda and the spread of her ideas. 
Senator Lodge, our representative in the 
United Nations, spoke recently in New 
York to a group. He said that he was 
convinced that the United Nations was 
the greatest sounding board in the world 
and that he thought the United States 
could— and did— use the United Nations 
to a great advantage as a sounding 
board. He said: 

I can say one thing on an 

afternoon in the United Nations 

and it will be heard around the 

world, whereas if we sent out 

mimeographed press releases to a 

lot of different countries nobody 

would print it at all. Further, 

when the remark is made by the 

Soviet delegation I can respond 

within five minutes and the denial 

goes out on the same wire as the 

allegation, which would also be 

impossible if we were just passing 

around notes through the press 

service of the world. 

I think that the Soviet Union has 

appreciated the possibility— just as we 

do— that the United Nations performs a 

great function to her as a propaganda 

platform. She does, however, withdraw 

from those agencies which seem to be 

meddling in her domestic affairs too 

much. For example, the World Health 

Organization: she pulled out of that 

because she had to hand in reports on 

the state of her health. This, you see, 

runs into the question of the economic 

condition of her country (because 

health is also an economic matter), to 

which the Official Secrets Act refers. So 

she removed herself from that agency. 

She seems to have thought that the 

International Labor Organization is so 

valuable that she is willing to violate one 

of her long-standing principles by 

joining it. She has consented— on a 

compulsory basis, after having been 

required to do so if she wanted to get 

into it— to having any disputes within 

the ILO referred to the World Court. 

Here, then, the value of the propaganda 



74 



platform was apparently so great that 
she was prepared to withdraw from one 
of the fixed principles of her policy; 
namely, never, never to find herself in a 
position where someone else decides the 
international law of a question. 

What can we do to meet the chal- 
lenge? In the light of the Soviet attitude 
can the democracies take steps in the 
international law field to improve their 
position? I think that they can. I think 
that we can do these things. I think we 
can press for clarification of interna- 
tional law through the International 
Law Commission, which meets annually 
in Geneva under the auspices of the 
United Nations, so that the elements of 
international law will be written down 
as part of a whole fabric and the 
Russians make clear to the world that 
they do or do not take the whole fabric. 
In other words expose the Soviet posi- 
tion, which the U.S.S.R. claims is a 
thoroughly international law position. 
This will occur when Soviet representa- 
tives refuse to accept principles in the 
codification process. They could not 
thereafter claim effectively to be the 
protector of international law. I know 
that the British opposed codification, 
just as the Russians have been reluctant 
to accept it so far, the British feeling 
that if you sit down and write out the 
law, a great deal of customary interna- 
tional law will be lost. Therefore, the 
British would prefer writing diplomatic 
notes with references to events of the 
past which they believe establish cus- 
tomary international law and support 
their position rather than having to look 
at a code in which those very positions 
may have been eliminated as a result of 
a majority vote. I understand the diffi- 
culties and dangers, but in balancing 
them it would seem to me that the 
democracies could press for further 
codification, get the Russians to expose 
their hand, and, where possible, obtain 
their signature on a code so that there- 
after one could say to them: "You 
cannot exclude that principle for it is 



Article 32 of that particular code and 
you adopted it. So there can be no 
question whatever. It is in black and 
white, it is yours, and you are on the 
document." Codification, therefore, 
would be one of my recommendations. 

Another recommendation: I think 
we should utilize occasions presented, as 
that of the Nuremberg Trial, to put the 
Soviet Union on record as accepting 
principles of international law. You 
remember that Mr. Justice Jackson said 
that the principal reason why he con- 
sented to leave the Supreme Court 
bench of the United States and go over 
to Germany was just that. He said, in 
effect: "I wanted to establish in law and 
I wanted to get the Soviet to judge on 
the document to the effect that aggres- 
sion is a crime. I felt that if I could do 
that I had something to cite if they 
eventually threatened war. I could say: 
'Here is your Soviet judge saying aggres- 
sion is a crime— now try and face that." 
So it seems to me that if it is possible to 
bring the U.S.S.R. into situations that 
do present themselves from time to time 
in getting the U.S.S.R. to adopt a 
principle which will keep the peace, by 
all means do so. 

Thirdly, I think that we should tell 
the world that we also want the benefits 
provided by the recognition of sover- 
eignty in international law, just as the 
Soviets claim they do; that is, we believe 
that the States should be permitted to 
do domestically what they wish. Yet, on 
the other hand, I think we ought to 
make it very clear that as we see the 
world, and as we suggest the rest should 
see the world, this right to do what we 
want to do cannot be maintained in the 
face of the dangers from the Soviet 
Bloc. Hence, we believe in collective 
security, which does inevitably mean a 
certain loss of sovereignty so that one 
can save his sovereignty. I do not know 
whether that argument is too compli- 
cated for some of the peasants in Asia, 
but it is one which I think we should 
attempt. 



75 



Then, finally, I think we should appeal 
to world public opinion on the new role 
of international law as the protector of 
the individual. We were asked (and we 
had a chance) in connection with the 
Cardinal Mindszenty case in Hungary to 
appeal to the principles of international 
law written into the treaty after the war 
with Hungary and the other Eastern 
States, in which it was provided that 
these states would accord to their citi- 
zens the enjoyment of human rights. 
There was set up an elaborate procedure 
under which any disputes in connection 
with the treaty obligations would be 
settled through arbitration. The Hun- 
garian and Bulgarian governments (the 
Bulgarians had their Kostov case) re- 
fused to appoint their arbiters and the 
case went to the World Court to see 
whether the Secretary-General of the 
United Nations could not appoint the 
third man, as he was permitted to do, 
when the parties could not agree on an 
arbiter. You remember that the World 



Court said: "No, if the Bulgarians and 
Hungarians will not appoint their 
arbiters so that we have two (one from 
the United States and one from Bul- 
garia), we cannot have a third." So we 
had no possibility of pressing that point. 
But it seems to me that opportunities 
may develop in the future and that we 
should utilize them to the fullest extent. 
Therefore, in my opinion we have no 
reason whatever to be discouraged. We 
have long been supporters of interna- 
tional law and it seems to me that 
before the bar of world public opinion 
we can hold our heads high. I encourage 
all of you in your activities to remember 
the bar of public opinion and to utilize 
the principles of international law as 
frequently as you can because, in my 
mind at least, the world craves legality. 
Much of the Neutralist Bloc, on which 
we rely in the last analysis for ultimate 
victory, is going to respond to those 
who argue in terms of legality rather 
than without it. 



* 



76 



SOVIET INTERPRETATION AND APPLICATION 



OF EVTERNATIONAL LAW 



Oliver J. Lissitzyn 



When some five years after the Rus- 
sian Revolution an attempt was being 
made at a conference at the Hague to 
settle some of the issues between the 
Soviets and the Western European coun- 
tries, and arbitration was suggested, 
Litvinov, the Soviet representative, was 
reported to have said: 

Commander Hilton Young had 
asked whether it would be impos- 
sible to find a single impartial 
judge in the whole world. It was 
necessary to face the fact that 
there was not one world but 
two— a Soviet world and a non- 
Soviet world. Because there was 
no third world to arbitrate, he 
anticipated difficulties . . . The 
division he had mentioned ex- 
isted, and with it existed a bias 
and a hatred, for which the Rus- 
sian Government must decline the 
responsibility. Only an angel 
could be unbiased in judging Rus- 
sian affairs . . . 
This statement reflects one aspect of 
Communist ideology which has colored 
the Soviet attitude toward international 
law— the concept of two worlds between 
which there is hatred— the Soviet and 
the non-Soviet. In the Soviet Union, 
ideology has been closely related tc 
policy. Let us look at the Soviet ide- 
ology and its implications for interna- 
tional law. 



The Communists profess to interpret 
history in terms of the class struggle. On 
one side are the exploiters, the capital- 
ists, those who own the means of 
production. On the other side are the 
tollers, the proletariat, those through 
whose labor the exploiters make profits 
for themselves. These two classes are 
antagonistic in their interests, and, con- 
sequently, hostile to each other. In their 
struggle, no holds are barred. In the 
capitalist states, government, law, re- 
ligion and morality are all weapons by 
which the capitalists protect their 
property interests and keep the workers 
in subjection. But, the Communists say, 
historical development inexorably 
dooms capitalism. Beset by its own 
inner contradictions, capitalism is 
bound to be overthrown by the workers 
in a not too distant future. The Russian 
Revolution, in which the workers for 
the first time in history succeeded in 
overthrowing capitalistic rule, marks the 
beginning of the end. When the workers 
are finally victorious everywhere, they 
will completely destroy the capitalist 
system of government, law and 
morality. Eventually there will be a 
world commonwealth of labor in which 
government and law will become un- 
necessary and fade away, since there 
will no longer be any antagonistic 
classes struggling with each other. But 
before this comes to pass, there is 



77 



bound to be a period of transition, a 
period of struggle, since capitalism will 
not willingly give way to Communism. 
During this period, the workers, wher- 
ever they are victorious, as in Russia, 
will set up a dictatorship of the prole- 
tariat to crush capitalist resistance; they 
will seize and use the machinery of 
government in their own interests. 

In its struggle against capitalism, the 
proletariat must not be handicapped by 
moral scruples. Lenin said that at this 
stage of history morality "is completely 
subordinated to the interests of the class 
struggle of the proletariat." Recent 
Soviet writings leave little doubt that 
the advancement of Communism still 
remains the supreme criterion of 
morality in Soviet ideology. Hatred of 
the class enemy— of capitalists as a 
class— continues to be regarded as one of 
the components of Soviet morality. 

Law is regarded by the Communists 
as an instrument by which the ruling 
class imposes its will on the community. 
Vyshinsky, for instance, has defined law 
as "the sum total of rules of conduct 
expressing the will of the ruling class" 
which are enforced "in order to protect, 
consolidate and develop such social rela- 
tions and institutions as are advan- 
tageous and agreeable to the ruling 
class." In a United Nations debate in 
1948, he said that law is nothing but an 
instrument of policy; that law and 
policy cannot be contrasted. 

The law of a state ruled by the 
capitalists is bound to be quite different 
from the law of a state such as the 
Soviet Union, in which the will of the 
workers prevails. One is an instrument 
of capitalist policy; the other an instru- 
ment of the anti-capitalist policy of the 
working class. The Communists profess 
to find support for their conception of 
law in the actual practices of capitalist 
governments; they claim that law is 
cynically manipulated by capitalists to 
suit their own purposes. 

At this point, I should admit that my 
presentation of Communist philosophy 



has been sketchy and oversimplified. I 
think, however, that I have presented 
enough of the basic ideas to draw the 
necessary implications. Let us look at 
the matter from the standpoint of a 
Communist who takes his ideology seri- 
ously. 

First, there is no room for any 
genuine and lasting community of inter- 
est between the Communist and the 
non-Communist worlds, since there is 
bound to be implacable hostility be- 
tween them. This does not mean, of 
course, that there will be open warfare 
all the time; but the periods of relaxa- 
tion are merely uneasy truces. Neither 
side can truly reconcile itself to the 
continuing successful existence of the 
other. If a genuine community interest 
among nations is to be regarded as one 
of the foundations of international law, 
this foundation would seem to be lack- 
ing in the relations between the Com- 
munist and the non-Communist states. 

Second, the period of transition— 
that is, the period of coexistence of the 
Communist and non-Communist worlds 
—is bound to be a limited one. It will 
end in a not too distant future with the 
complete triumph of Communism. This 
means that Communists have little rea- 
son to attach much value to the long- 
range advantages of the observance of 
international law in good faith. If expec- 
tations of stability and permanence are 
one of the foundations of international 
law, this foundation, too, would seem 
to be lacking in the relations between 
the Communist and the non-Communist 
worlds. 

Third, since Communists reject capi- 
talist morality and are told that the 
advancement of Communism is the 
supreme moral imperative, morality in 
the traditional sense plays little or no 
part in Communist ideology as a basis 
for the observance of international law. 

Furthermore, law is for the Commu- 
nists nothing but an instrument of the 
policy of the ruling class. In its modern 
form, internationa] law has grown up 



78 



among capitalist states; it must, there- 
fore, be an instrument of capitalist 
policies. Why should a state controlled 
by a class hostile to capitalism have 
anything to do with it? Indeed, if law 
always expresses the will of a ruling 
class and is enforced by it in its own 
interest, how can there be any law in 
the relations between states ruled by 
different and mutually hostile classes? 
The will of which of these classes would 
it express? Or, is each of the classes to 
apply international law only to the 
extent and in the way that suits its own 
interests and policies? 

It is clear that the Communist con- 
ception of law as an instrument of 
policy makes for a highly practical and 
flexible approach. Rules of law are not 
absolutes that must be obeyed regard- 
less of consequences; they cannot con- 
trol policy; they are merely the means 
of producing desired results and should 
be interpreted and applied accordingly. 

It might be expected that since inter- 
national law was difficult to fit into 
Communist ideology it would be de- 
clared nonexistent, unreal. Far from it. 
Soviet writers, with official blessing, 
unanimously uphold the reality of inter- 
national law. They refer to it as an 
attribute of culture and civilization, and 
as an essential condition of modern 
international relations. Those in the 
West who deny or doubt the reality of 
international law are attacked as 
nihilists. Soviet leaders from time to 
time call for more study of international 
law. International law is often invoked 
in official Soviet documents and 
speeches. In short, the Soviets profess to 
recognize international law and even to 
lay stress on it. The philosophical diffi- 
culties of fitting international law into 
the Communist scheme of things have 
not been completely resolved; they still 
trouble Soviet writers; but they are not 
permitted to stand in the way of pro- 
fessed acceptance of international law 
by the Soviet State. 

This acceptance, however, is not 



complete. For example, Kojevnikov, a 
leading Soviet jurist who is now the 
Soviet judge on the International Court 
of Justice, wrote in 1948: 

Those institutions in interna- 
tional law which can facilitate the 
execution of the stated tasks of 
the USSR are recognized and 
applied by the USSR, and those 
institutions which conflict in any 
manner with these purposes are 
rejected by the USSR. 
Yet Soviet writers, generally speaking, 
are cold to the idea that there are two 
completely distinct bodies of interna- 
tional law, one Soviet and the other 
capitalist. In this sense, there is no 
special Soviet international law. What it 
boils down to is that the Soviets accept 
international law to the extent that it 
suits their purposes. Indeed, the Soviet 
leaders are in a somewhat difficult 
position. On the one hand, they want to 
use international law to serve their own 
purposes. For this reason, they must 
admit its reality and even try to build it 
up. On the other hand, they do not 
want international law to be used 
against them. The Soviet position is, 
therefore, ambiguous and highly 
flexible. Vyshinsky has defined interna- 
tional law as "the sum total of the 
norms regulating relations between 
states in the process of their struggle 
and cooperation, expressing the will of 
the ruling classes of these states and 
secured by coercion exercised by states 
individually or collectively." Note that 
"struggle" is put ahead of "coopera- 
tion." 

What are the Soviet needs served by 
international law? Let us take our cue 
from Vyshinsky 's reference to struggle 
and cooperation— in that order. 

After a very brief initial period of 
confident expectation that the workers 
of the rest of the world would follow 
the Russian example and put an end to 
capitalism right away, the Soviet leaders 
realized that the Soviet and the non- 
Soviet worlds would coexist for some 



79 



time to come. The Soviet State found 
itself in what they call "the capitalist 
encirclement. " The capitalist world was, 
for the time being, stronger than the 
Soviet world. There was little or no 
open warfare between the two— except 
in part for World War II— but there was 
a continuing struggle, a struggle for the 
minds of men, and an expectation of 
greater struggles to come. The Soviet 
world, being the weaker of the two, 
needed time— time to strengthen itself 
and to weaken the opposition. Under 
these conditions, the Soviet leaders 
turned to international law. Weak as it 
was, it had enough appeal, enough 
power to influence people, to be a 
useful instrument of Soviet policy. 

First and foremost in the minds of 
the Soviet leaders was the danger of 
intervention from abroad against the 
weak Soviet State. Such intervention, in 
fact, did take place in the first few years 
after the Revolution when civil war still 
raged in Russia. Although the Soviet 
regime survived, any repetition might be 
disastrous. Moreover, the Soviet politi- 
cal and economic system was so dif- 
ferent from the capitalist system that 
the Soviet leaders saw danger in any 
tendency for the capitalist states to have 
a voice in how the Soviet system should 
be run. Naturally enough, the Soviets 
appealed to the time-honored principles 
of sovereignty, nonintervention and 
equality of states. These principles 
would help them run their own country 
without outside interference, and, 
despite their weakness, hold themselves 
equal to any other state in the world. 
The Soviets also emphasized their oppo- 
sition to forcible annexation of foreign 
territory. 

The principles of sovereignty and 
nonintervention continue to serve the 
purposes of the Soviet policy to this 
day. For example, when the United 
States recently brought up for discus- 
sion the problem of the Soviet satellites 
in Europe, the Russians said that such 
discussion would amount to inter- 



vention in the affairs of sovereign states. 
The principle of nonintervention has 
been appealed to again and again— for 
example, during the Spanish Civil War, 
to mobilize public opinion against the 
German and Italian help to Franco; and, 
more recently, in denunciations of the 
help given by the United States to the 
foes of Communism in China, Korea, 
Guatemala and other countries. 

The need of the Soviet leaders to 
protect themselves against capitalist 
interference is also reflected in various 
corollaries of the principle of sover- 
eignty. For example, the Soviets like to 
stress treaties rather than custom as the 
chief source of international law. A 
treaty is not binding on them unless 
they choose to ratify or otherwise 
accept it, while a custom— which may 
have been formed long before the Rus- 
sian Revolution— might be held binding 
on the Soviet Union even if it did not 
manifest its acceptance. Similarly, the 
Soviets take a generally negative atti- 
tude toward any device whereby any 
decision binding on them could be made 
without their specific consent. They 
oppose all proposals to give any interna- 
tional organization the power to make 
decisions on any matter of importance 
by a majority vote, unless they retain a 
veto power, as in the United Nations 
Security Council. As suggested by the 
quotation from Litvinov, with which I 
opened my talk, the Soviets are skepti- 
cal of the value of arbitration in the 
settlement of their disputes with other 
states, although in all fairness it must be 
pointed out that they offered to arbi- 
trate two disputes with the British in 
1923 and 1924, and that the offer was 
ignored. Although the Soviet Union is a 
party to the Statute of the International 
Court of Justice, and a Soviet national is 
one of the judges, the Soviets have not 
agreed to accept the compulsory juris- 
diction of the Court under Article 36 of 
the Statute and have invariably declined 
all offers to submit their disputes with 
other countries to the Court. In fact, 



80 



they take pains to attach to multilateral 
treaties to which they are parties reser- 
vations against the submission of dis- 
putes arising under those treaties to the 
International Court. The specific rea- 
sons for this attitude are not hard to 
find. True to their conception of law, 
the Soviets do not regard the Court as 
standing above politics, but rather as a 
body in which the interests of the 
capitalist states— from which most of 
the judges come— are bound to prevail. 
Soviet writers, in fact, do not hesitate to 
impute political motives to the judges, 
and often speak of an Anglo-American 
majority on the Court. In short, the 
Soviets are generally not willing to 
submit themselves to majority or third- 
party decisions lest such decisions be 
used by the capitalists to the detriment 
of the Soviet State. 

Basically, for the same reason, the 
Soviets oppose proposals to give to 
individuals any effective rights in inter- 
national law. Soviet writers, in fact, 
refuse to recognize individuals as sub- 
jects of international law. If individuals 
had such standing, the capitalist states 
would have a pretext for interfering 
with the control which the Soviet 
leaders exercise over their own people. 

The Soviets like to exercise their 
territorial sovereignty with as few re- 
strictions as possible. They deny, for 
instance, that foreign warships have a 
right of innocent passage through terri- 
torial waters— a point still unsettled in 
the West— and refuse to enter into any 
general agreements permitting foreign 
aircraft to fly over Soviet territory. 

Another international law principle 
which the Soviets have stressed as a 
means of self-protection is the principle 
of nonaggression. Before World War II, 
the Soviet Union negotiated a number 
of treaties with neighboring states de- 
fining and forbidding aggression. In the 
League of Nations, the Soviet represen- 
tatives were loud in their denunciations 
of the aggressions committed by the 
Japanese, the Italians, and the Germans, 



and in the protestations of the peaceful 
intentions of the Soviet Union. This 
policy produced considerable goodwill 
for the Soviets in the democratic coun- 
tries at that time. Since World War II, 
the Soviets have participated in the 
trials of the major German and Japanese 
war criminals, and have been recently 
insisting on the adoption by the United 
Nations of a definition of aggression. 

The interest of the Soviet leaders in 
the protective function of international 
law is also reflected in the laws of war. 
Two distinctive Soviet positions may be 
mentioned here: (1) the Soviet espousal 
of the lawfulness of guerrilla warfare 
behind the lines, and (2) the denuncia- 
tion of weapons of mass destruction 
such as atom bombs and germ warfare. 
So far as guerrilla warfare is concerned, 
the Soviets appear to be conscious of its 
usefulness in case of a foreign invasion 
of the Soviet Union, which was in fact 
demonstrated in World War II, as well as 
in civil wars and anticolonial revolts in 
other countries. We all know the success 
with which the Communists have used 
guerrillas in China, Vietnam, and other 
places. The Soviet writers maintain that 
guerrillas are lawful belligerents, 
apparently drawing the conclusion that 
they are entitled to be treated as 
prisoners of war. The Soviet denuncia- 
tions of the weapons of mass destruc- 
tion may be attributed in part to con- 
sciousness of the fact that at this time 
the use of such weapons would not be 
to the advantage of the Soviet Union 
and its allies, but they also serve an 
important propaganda purpose. These 
denunciations appeal powerfully to the 
natural revulsion of people everywhere 
against such horrible weapons as the 
H-bombs and disease germs, and, par- 
ticularly, to the weaker or more ex- 
posed countries. 

This brings me to another point. The 
Soviets use the slogans of international 
law only to help prevent measures 
which threaten their own security or 
freedom from outside interference. 



81 



They use them to stir up resentment 
against their opponents and to attract 
support. We all recall the great propa- 
ganda campaign against the alleged 
American resort to bacteriological war- 
fare in Korea. The principles of sover- 
eignty, nonintervention and equality of 
states have been constantly invoked by 
Soviet spokesmen and propagandists in 
their attacks against the United States. 
For example, the Marshall Plan, NATO, 
and American bases abroad have all 
been denounced as violations of the 
principles of sovereignty and equality, 
and as devices through which the United 
States interferes in the affairs of other 
states. Furthermore, Soviet writers and 
spokesmen invoke the principle of self- 
determination as if it were an accepted 
principle of international law to stir up 
colonial and minority peoples against 
their rulers— and, in so doing, undoubt- 
edly gain the sympathy of many such 
peoples. The laws of war are appealed to 
in denunciations of alleged atrocities by 
troops fighting against the Communists, 
as in Korea. The use of international law 
slogans as a psychological weapon be- 
came particularly intense at the height 
of the cold war, during the conflict in 
Korea. Since the death of Stalin and the 
end of the Korean conflict the tone of 
Soviet propaganda has moderated, but 
international law is still drawn upon 
heavily. 

You may ask whether the espousal 
by the Soviets of such principles as 
sovereignty, nonintervention, nonaggres- 
sion and self-determination does not 
hamper the Soviets themselves in the 
achievement of their aims. But it is clear 
that the Soviets, who regard interna- 
tional law as an instrument of policy 
and who recognize it because it suits 
their purposes, would not let it stand in 
the way of achievement of important 
policy aims. Soviet officials, it is true, 
never openly deny that international 
law exists or that it is binding on the 
Soviet Union. There are several ways, 
however, of preventing international law 



from interfering with Soviet policy. One 
way, as I have already indicated, is to 
reject explicitly certain of the rules as 
unacceptable to the Soviet State and to 
insist on certain new rules. There are 
other, and probably more effective, 
ways. Many of the rules of international 
law are vague and uncertain, leaving 
much room for interpretation. Not in- 
frequently there are contradictory 
precedents and authorities to choose 
from. As Professor Hazard says, "Soviet 
authors and statesmen pick and choose 
among the precedents to meet their 
needs, and they do so quite openly." 
The Soviet approach to international 
law, it must be repeated, is very flexible. 
Kojevnikov, in his 1948 book, empha- 
sizes that international law must not be 
interpreted in an "abstract dogmatic" 
fashion. In fact, the principles the 
Soviets profess to espouse do not deter 
them from pursuing policies in apparent 
conflict with these principles. The prin- 
ciple of nonintervention, for example, 
has not prevented the Soviets from 
giving aid to subversive movements and 
Communist guerrillas abroad. Or, take 
the matter of nonaggression. As I have 
already pointed out, the Soviets profess 
to be unalterably opposed to aggression; 
they make nonaggression pacts; they are 
also said to oppose annexations and to 
favor self-determination. When the time 
came, however, this did not stop them 
from taking aggressive action against 
their neighbors, such as Poland, the 
Baltic States and Finland, with all of 
whom they had nonaggression pacts. 

The principle of nonaggression, 
furthermore, should be compared with 
the definition of just and unjust wars 
laid down in 1938 by Stalin himself and 
faithfully repeated by Soviet writers. 
Listen carefully to this definition: "just 
wars— wars that are not wars of con- 
quest but wars of liberation, waged to 
defend the people from foreign attack 
and from attempts to enslave them, or 
to liberate the people from capitalist 
slavery, or, lastly, to liberate colonies 



82 



and dependent countries from the yoke 
of imperialism, and Unjust wars— wars 
of conquest, waged to conquer and 
enslave foreign countries and foreign 
nations." It is hardly open to doubt that 
this Stalinist doctrine of just war will be 
used to justify any war the Soviet 
leaders choose to wage. Furthermore, 
there are indications in Soviet literature 
that only those who are fighting a 
so-called just war will be regarded as 
entitled to the full benefits of the laws 
of war. For instance, guerrilla warfare 
seems to be regarded as lawful only 
when waged as part of a just war. This is 
an important point to remember. In 
fact, the doctrine of just war may be the 
key to the full understanding of the 
Soviet conception of international law. 
It takes us back to the Communist 
conception of morality. Only he who 
wages a just war, or a just struggle, has 
any rights. And the Communists regard 
their struggle against capitalism— 
whether or not it takes the form of 
open war— as just. Therefore, anything 
goes in the struggle against capitalism. 
Soviet spokesmen and writers never 
tire of proclaiming that the Soviet 
Union faithfully observes all treaties 
concluded by it on a basis of freedom, 
equality and reciprocity. That the 
Soviets do attach some importance to 
the observance of treaties would seem 
to be indicated by the fact that they 
frequently take pains to protect legally 
their freedom of action on particular 
points by making express reservations. 
In other words, the Soviet leaders prefer 
to avoid situations in which their treaty 
obligations might come in obvious con- 
flict with their policies. It has also been 
noted that the more specific and clear 
the treaty obligation is, the less room 
there is for divergent interpretations— 
the less likely are the Soviets to violate 
it. Yet, the record of observance by the 
Soviets of their treaty obligations, par- 
ticularly in matters of political im- 
portance, has not been such as to inspire 
general confidence. Even allowing for 



reasonable differences in interpretation 
and for the uncertainty of the rules of 
international law concerning termina- 
tion of treaties, the behavior of the 
Soviet Union has given the impression 
that its promises are not to be trusted. I 
have already referred to the nonaggres- 
sion pacts which did not prevent the 
Soviets from invading or coercing cer- 
tain of its neighbors. Certainly the 
failure to withdraw troops from Iran 
after the end of hostilities in World War 
II was a clear violation of a treaty 
obligation. The Soviets have failed to 
keep may promises not to support 
subversive activities abroad. The United 
States felt compelled to protest in 1935 
against the Soviet violation of such a 
promise less than two years after it had 
been given. Soviet behavior in Eastern 
and Central Europe after World War II 
has been generally regarded in the West 
as not in conformity with the agree- 
ments at Yalta and Potsdam. Many 
other examples could be given. 

There is still another device which 
helps the Soviet Union to get around 
international law and which cannot be 
left out of any realistic account of 
Soviet behavior. This device is mis- 
representation of the facts. This seems 
to be the standard device, for example, 
in justifying the Soviet role in border 
incidents. It is always the American or 
other foreign airplane that invades 
Soviet territory and starts shooting. And 
you may recall the Soviet version of 
how the conflict in Korea started in 
1950— it was the South Koreans who 
attacked first. This device is also fre- 
quently used when the Soviets are 
charged with promoting subversion 
abroad. The facts are simply denied. 

So far, I have talked primarily of the 
use of international law in Soviet policy 
as a weapon in the struggle against the 
so-called capitalist encirclement. The 
picture is not encouraging. You will 
recall that Vyshinksy in his definition of 
international law mentioned coopera- 
tion as well as struggle. The Soviet 



83 



leaders recognize that a period of co- 
existence with the capitalist encircle- 
ment may last for some time to come. 
During this period of relatively peaceful 
relations it may be, and often has been, 
to the advantage of the Soviet State to 
cooperate with the capitalist states for 
various purposes. In fact, the building 
up of the economic and military power 
of the Soviet State, particularly in the 
early days, required commercial and 
other economic relations with the out- 
side world, and the avoidance of exces- 
sive friction which might lead to open 
warfare. Participation in international 
organizations of political, as well as 
technical, character has also been 
deemed necessary in the interests of the 
Soviet State. Finally, on occasion the 
Soviet State found itself allied with 
some capitalist states against common 
enemies, as was the case during World 
War II. International law has been recog- 
nized by the Soviet leaders as a useful 
device for the facilitation of peaceful 
and cooperative relations with the out- 
side world when Soviet policy calls for 
them. 

As a matter of fact, there has been a 
considerable measure of routine ob- 
servance of international law by the 
Soviets. For example, aside from certain 
claims to territorial waters, about which 
I shall speak later, the Soviets have by 
and large respected the principle of the 
freedom of the seas. Despite occasional 
incidents involving foreign diplomatic 
personnel in Moscow, the Soviets have 
observed the generally recognized rules 
of diplomatic relations with most 
capitalist states. Before World War II, 
thousands of foreign technicians worked 
in the Soviet Union, helping to develop 
Soviet industry. Again, with some ex- 
ceptions, the Soviets treated these for- 
eigners in accordance with recognized 
international standards. The Soviet 
record of observance of nonpolitical 
commitments— for example, commercial 
agreements and technical arrange- 
ments—has been appreciably better than 



their record with respect to political 
treaties, such as nonaggression pacts. 
During World War II, the Soviets gener- 
ally honored their strictly military com- 
mitments to their allies. All of this 
indicates that the Soviet Union is per- 
fectly capable of observing international 
law when its leaders believe it to be in 
their interest. 

Yet, it must be noted that Soviet 
writers have on occasion stated that 
cooperation with the capitalist world is 
itself a form of struggle. 

At this point, I should like to men- 
tion some distinctive factors other than 
Communist ideology that enter into the 
Soviet interpretation and application of 
international law. 

First, the nature of the Soviet politi- 
cal and economic system. This system, 
to be sure, is in large part an outgrowth 
of Soviet ideology; but, once estab- 
lished, it acquired a life of its own and 
its own needs which may persist even if 
the ideology is changed or no longer 
taken seriously. 

One of the features of the Soviet 
system is the totalitarian control of the 
population by the government. This 
control, for full effectiveness, requires a 
limitation on the contacts of the Soviet 
population with the outside world; it 
requires a monopoly of the information 
which is allowed to reach the people. 
This is an important source of the 
restrictions placed on the travel of 
Soviet citizens abroad and of foreigners 
in the Soviet Union, as well as such 
devices as the jamming of foreign broad- 
casts. It also accounts in part for the 
refusal to recognize individuals as having 
rights in international law, and the 
reluctance of the Soviets to enter into 
any agreement whereby they would be 
required to permit free entry to foreign 
nationals or officials. It has possibly 
entered into the Soviet coolness toward 
disarmament control plans which in- 
volve wide travel in the Soviet Union by 
foreign inspectors. The totalitarian con- 
trols and the restrictions on contacts 



84 



with foreigners tend to distort even the 
information available to the leaders 
themselves; they prevent full under- 
standing of the reactions to Soviet 
policies abroad; and they interfere with 
the development of any nonofficial con- 
census between Soviet citizens and for- 
eigners even on the professional level of 
international law. The complete govern- 
mental control of all economic activity, 
particularly that involving foreign trade 
and shipping, means the absence of 
private economic interest groups which 
in the West have had a lot to do with 
the development and enforcement of 
certain international law standards and 
institutions. All of this tends to set the 
Soviets apart from the main stream of 
world thinking and feeling, and accentu- 
ates the peculiarities of the Soviet ap- 
proach to international law. 

The Soviet state monopoly of foreign 
trade and shipping has, indeed, direct 
effects on the Soviet interpretation of 
international law. Since all Soviet trade 
is conducted by government agencies, 
the Soviets steadfastly uphold the tradi- 
tional principle that governments and 
their property are immune from the 
jurisdiction of foreign courts even when 
engaged in ordinary commercial activi- 
ties abroad. This principle is being in- 
creasingly questioned and modified in 
the non-Soviet world. The Soviets also 
insist that their trade representatives 
abroad are entitled to diplomatic im- 
munities. As suggested by Professor 
Hazard, this may have other than a 
commercial objective, since immunity 
facilitates espionage and subversive 
activities; nevertheless, a number of 
European and other non-Soviet states 
have agreed to accord immunity to such 
representatives, since Soviet foreign 
trade is a state monopoly, and for- 
eigners, if they want to do business with 
the Soviets, have no choice but to deal 
with official Soviet agencies. 

Another distinctive factor is the geo- 
graphical position of the Soviet Union. 
Russia has always been primarily a land 



power. Its maritime power has been 
handicapped by the absence of good 
outlets on the open ocean and the fact 
that entrances to the seas bordering it 
are largely controlled by other nations. 
Naval power has more often figured in 
history as a means of attack on Russia 
rather than as an instrument of aggres- 
sion on Russia's part. There are, further- 
more, valuable fisheries off the coasts of 
Russia. All of this makes it natural for 
Russia to try to extend its territorial 
waters as far as possible through various 
devices, and to gain control of the 
entrances to the seas bordering it. A 
tendency to extend the Russian terri- 
torial waters to twelve miles, instead of 
the three miles favored by the major 
maritime powers, appeared already 
before the Revolution, although it was 
manifested in the form of claims of 
jurisdiction for customs and fishery 
control rather than in terms of outright 
sovereignty. The Soviets inherited and 
strengthened this tendency. Although 
Soviet statutes do not seem flatly to 
assert Soviet sovereignty in a zone 
twelve miles wide— speaking rather in 
terms of control for security and other 
purposes— there can be little doubt that 
the Soviet Union does claim today a 
12-mile zone of territorial waters. In all 
fairness, it should be noted that this 
claim seems modest in comparison with 
the 200-mile claims recently made by 
some Latin American States. Never- 
theless, it has been a cause of frequent 
controversies with other powers, in- 
cluding the United States, the United 
Kingdom, Japan and the Scandinavians. 
The Soviet Union maintains that each 
state may fix the width of its territorial 
waters in the light of all the attendant 
circumstances. 

A further example of the tendency 
to extend Soviet territorial waters may 
be seen in the statements of Soviet 
writers that four seas bordering the 
Soviet Union on the north— the Kara, 
Laptev, East Siberian and Chukot (or 
Chukchi)— are in reality territorial bays; 



85 



that is, a part of Soviet inland waters, 
rather than high seas. There is a hint 
that the same principle may apply to 
the Sea of Okhotsk. As yet, there seems 
to have been no occasion on which the 
Soviet government made such claims 
officially. The White Sea, however, is 
definitely treated as a part of Soviet 
inland waters. 

Another claim made by Soviet 
writers and apparently espoused by the 
government is that certain seas border- 
ing Russia are closed seas, because they 
do not constitute waterways used for 
navigation other than that to and from 
the littoral states and, therefore, naviga- 
tion on them is of concern only to the 
latter, which are entitled to regulate it 
in their own interests even to the point 
of forbidding access to outsiders. This 
concept of the closed seas, which should 
be distinguished from that of territorial 
waters, is novel in modern international 
law. The Black Sea and the Baltic Sea, 
as well as the landlocked Caspian Sea, 
are regarded by Soviet writers as closed 
seas. Recent reports indicate that the 
Soviet Union has proposed to Japan 
that the Sea of Japan should be declared 
a closed sea, on which navigation by 
warships of outside powers would not 
be allowed. The Sea of Okhotsk, if not 
claimed by the Soviets as a territorial 
bay, might also be regarded as a closed 
area. 

As yet, the Soviet concept of the 
closed sea does not seem to have had 
much practical effect. Russia, however, 
has always been interested in the con- 
trol of the Turkish Straits leading to the 
Black Sea. Although the Soviets are a 
party to the Montreux Convention of 
1936 on the Regime of the Turkish 
Straits, they have not been entirely 
satisfied with it, since it does not 
completely bar the Black Sea to the 
warships of outside powers and places 
some restrictions on the passage of 
warships of the Black Sea powers, en- 
trusting Turkey with the enforcement 
of its provisions. The Soviet Union 



would like to amend the convention to 
remove these objectionable features. It 
would also like to control the Straits 
itself. At present, three of the four 
Black Sea powers— the Soviet Union 
itself, Rumania and Bulgaria— belong to 
the Soviet block. Soviet proposals to 
give the control of the Straits and of the 
navigation of the Black Sea to the Black 
Sea powers would, therefore, give the 
Straits the preponderant influence. 

Another consequence of Russia's 
geographical position is her espousal of 
the so-called sector principle in the 
Arctic. This principle, invoked by the 
Russian government before the Revolu- 
tion, would permit Russia to claim all 
the islands in the Arctic Ocean up to the 
North Pole, including those not yet 
discovered or possessed, within the 
limits of a sector— like a slice of a 
pie— defined by the meridians at the two 
opposite extremities of the Russian ter- 
ritory bordering on the Arctic. Canada 
also favors the sector principle, although 
it has maintained it less bluntly. You 
can easily see why both Russia and 
Canada are in favor of it. Although the 
sector principle cannot be said to have 
obtained general recognition, the Soviet 
Union does in fact control virtually all 
of the islands claimed by it. Since there 
seems to be no additional land to be 
discovered, the sector principle has 
ceased to be much of an issue so far as 
lands in the Arctic are concerned. There 
has been a tentative suggestion in the 
Soviet literature, however, that the 
sector principle should be extended to 
cover not only land but water and the 
air space as well, making the Arctic 
Ocean all the way to the Pole a part of 
Soviet territory. Some Soviet writers 
have also claimed ice fields within the 
sector. There is no definite indication as 
yet that the Soviet government is pre- 
paring to make such claims official. 

Although the Soviets favor the sector 
principle in the Arctic, Soviet writers 
deny that it applies in the Antarctic, 
citing the differences in the geographical 



86 



situation. The Soviet Union has made 
no formal claims to any territory in the 
Antarctic, but has insisted that Russian 
discoveries in that region in 1819-1821 
entitle it to a voice in any general 
settlement of the problem of the con- 
trol of the Antarctic, and has protested 
against the claims of some other states. 

Although the Soviet interest in the 
extension of territorial waters, the con- 
cept of the closed seas, the sector 
principle in the Arctic, and related 
matters, is largely determined by the 
geographical position of Russia, and is a 
traditional Russian interest not related 
to Communist dogma, it is heightened 
by the Soviet ideology of hostility to 
the outside world and the needs of 
totalitarian controls. The Soviet posi- 
tion on these matters is obviously re- 
lated to the security of the Soviet State, 
living in a hostile environment, against 
any attack or interference from the 
outside. Should Soviet ideology be 
eliminated, it may be expected that any 
government of Russia will continue to 
favor the twelve-mile zone and the 
sector principle, but possibly with less 
vehemence. 

Under what conditions may we 
expect the Soviet Union to observe 
international law? And what of the 
future? 

Before attempting to suggest any 
answers to these questions, I should like 
to compare briefly the Soviet attitude 
toward international law with the atti- 
tudes in the non-Soviet world. This will 
give us a better perspective. 

Many aspects of the Soviet attitude 
find a counterpart in the non-Soviet 
world. Surely it would be ridiculous to 
assert that in the non-Soviet world 
international law is observed with per- 
fect regularity; that treaties are always 
kept; that expediency never enters into 
the interpretation and application of 
international law, that international law 
is never used for propaganda purposes; 
or that facts are never misrepresented. 
Indeed, there is a strain in Western 



thought, going back at least to Machia- 
velli, which would make expediency 
the sole basis for the observance of 
international obligations. As you may 
recall, Machiavelli said that a prince 
should not honor his promises if it is to 
his disadvantage to do so. In more 
recent times, the same kind of attitude 
has given rise to the idea that raison 
d'etat, necessity or self-preservation— 
often very broadly interpreted— justifies 
a state in doing anything. Furthermore, 
there is a school of thought in the West 
that advocates flexible interpretation 
and application of international law, 
pointing out that rules of law are not 
absolutes that have to be obeyed for 
their own sake; that they are means to 
some end, instruments of policy, and 
that they should be so interpreted and 
applied as best to achieve desirable 
results. In the absence of universal 
agreement on the values and goals to be 
served by the rules of law, this idea, 
meritorious though it may be in princi- 
ple, often means that a decision-maker 
feels free to interpret international law 
flexibly to serve the purposes he hap- 
pens to favor. There are also people who 
deny the reality of international law. 

Am I trying to say there is no 
difference between the Soviet and the 
non-Soviet attitudes toward interna- 
tional law? Not at all; there are very 
important differences, but we should 
understand their nature and sources. 

First of all, in the nontotalitarian 
West, side by side with the idea that the 
observance of law is a matter of ex- 
pediency, there has always been another 
idea— that observance of the law is a 
moral obligation, that law and morality 
have objective validity, and that they lie 
at the very foundation of civilized 
existence. There is a tradition of respect 
for law that carries over into interna- 
tional affairs. The overall Western atti- 
tude toward international law is a com- 
posite, a blend in varying proportions, 
of these two principles— the principle of 
expediency and the principle of moral 



87 



obligation. Communist ideology, on the 
other hand, leaves no room for a feeling 
of moral obligation to observe the law 
when its observance is not expedient for 
the Soviet States. In fact, the very 
existence of objective and universally 
binding moral principles is denied. This 
difference is accentuated by the absence 
in most of the non-Soviet world of 
totalitarian controls and forced con- 
formity to any single ideology. In the 
Soviet State, ideas contrary to those 
favored by the leaders cannot be pub- 
licly expressed; on the surface, Commu- 
nist ideology, the ideology of ex- 
pediency in international relations, 
reigns supreme. 

Probably even more important is 
another difference. As I have previously 
indicated, Communist ideology means 
that the Soviet Union regards all of the 
non-Soviet states as basically its ene- 
mies. Peaceful cooperation is bound to 
be temporary and for limited purposes 
only. It is expected that eventually 
Communism will prevail over all its 
enemies and so-called peaceful co- 
existence will come to an end. It is this 
sense of basic hostility and the tem- 
porary nature of any accommodation 
that distinguishes most profoundly the 
underlying Soviet attitude toward inter- 
national relations, including interna- 
tional law. Without it, incidentally, 
there would be less incentive for the 
Communists to reject universal, re- 
ciprocally binding, moral principles. In 
the non-Soviet world, no such feeling of 
ineluctable and lasting hostility nor- 
mally enters into relations between dif- 
ferent states. In fact, most of the states 
of the world have an expectation of 
friendly and lasting coexistence with 
most of the other states. This is often 
true even when they go to war with 
each other— the war is regarded as a 
temporary condition which does not 
necessarily mean undying hostility be- 
tween the two nations. In the relations 
between non-Soviet states, therefore, 
even though expediency be the under- 



lying principle, much greater value is apt 
to be put on reasonably faithful observ- 
ance of international law as a condition 
of stability and orderly coexistence. The 
long-range value of good faith is apt to 
be better appreciated. 

Differences between the Soviet and 
the non-Soviet economic systems are 
another factor. They reduce still further 
the element of a community of interest 
as a foundation of international law. 

In the light of the foregoing, under 
what conditions can we expect the 
Soviets to observe international law? 

The obvious answer is that the 
Soviets will observe international law 
when it is to their advantage to do so. 
The question, then, is when is it to their 
advantage? I have already given some 
partial answers to this question. Im- 
mediate advantages do flow to the 
Soviets from the observance of interna- 
tional law on their part in a variety of 
situations. 

First of all, unless the Soviets are 
prepared to go to all-out war with the 
rest of the world, it is to their advantage 
to observe international law to the 
extent necessary to avoid excessive fric- 
tion with other nations. Here is where 
the rules of territorial sovereignty, juris- 
diction, freedom of the seas, treatment 
of aliens, and the like— as well as treaties 
dealing with these matters— come in. 
The Soviet Union normally does observe 
many of these rules. 

Second, reciprocity and retaliation 
play a part in the observance of interna- 
tional law. To the extent that limited 
cooperation with non-Soviet countries is 
desired by the Soviet Union, it is likely to 
observe reasonably well the rules govern- 
ing such cooperation. There is no guaran- 
tee, however, that a shift in Soviet policy 
may not at any time put an end to the 
Soviet interest in the observance of any 
of these rules. Fear of retaliation is 
another factor which may be expected to 
induce the Soviet Union to observe inter- 
national law. This may be true, lor 
instance, with regard to the laws of war. 



88 



Third, the Communist leaders are by 
no means unmindful of world public 
opinion— or of public opinion in the 
countries with which they want to deal. 
A striking confirmation of this fact can 
be seen in the recent agreement of the 
Bulgarian Communist government to pay 
damages for the shooting down of an 
Israeli airliner and to punish those re- 
sponsible for it. Many observers have 
noted that the Soviets are less likely to 
violate a treaty if it is specific and 
unambiguous. This is another confirma- 
tion of the value of public opinion. The 
Soviets try to avoid committing clear 
violations which would shock public 
opinion. 

These factors may be called the 
short-range advantages to the Soviets of 
the observance of international law. To 
the extent such factors work, interna- 
tional law does make a difference, even 
though we cannot rely on the Soviets 
carrying out their obligations in good 
faith. The treatment of the prisoners 
taken by the Communists in Korea, bad 
as it was, might have been even worse if 
there had been no international stand- 
ards at all. 

Communist ideology, as I have indi- 
cated, minimizes the long-range value of 
the observance of international law, 
since Communists do not believe in 
lasting coexistence between the Soviet 
and the non-Soviet worlds. Yet, it is not 
inconceivable that this may change. If 
Soviet leaders become convinced that 
the so-called capitalist world is here to 
stay, they may come to appreciate the 
advantages of stability and good faith. 
Such an evolution may be helped along 
by greater contacts with the outside 
world. In short, Soviet leaders may 
come to redefine their interests. Com- 
munist ideology will certainly hamper 
such a reappraisal of the Soviet position 
in the world; but it may not prove to be 
an insuperable obstacle. The doctrine of 
the implacable hostility of the two 
worlds may be reinterpreted or quietly 
given up as an effective guide to policy. 



Perhaps it has already been given up in 
Yugoslavia by the Tito Communists. As 
Toynbee has pointed out, this has hap- 
pened to the Moslem doctrine of the 
holy war against the infidels, which no 
longer stands in the way of peaceful 
relations between Moslem and Christian 
nations. Reinterpretation of ideology is 
not new in Communist history. 

Indeed, although I have stressed 
ideology as an important factor in 
Soviet policy, the precise role of Soviet 
ideology has long been a subject of 
controversy in the West. Some observers 
are inclined to believe that ideology is 
an instrument rather than a determinant 
of Soviet policy. I happen to believe 
that ideology has exerted a substantial 
influence on Soviet policy. But it may 
not be the decisive factor. When we deal 
with human emotions and motivations, 
we are pretty much in the dark. The 
personality factor should not be dis- 
counted. Stalin ruled as a dictator for 
some twenty-five years, and Soviet 
policy could not but reflect his per- 
sonality. We cannot tell as yet what 
influence ideology will have on the 
policies of the new generation of Soviet 
leaders now coming to power. Should 
the idea of lasting hostility between the 
two worlds be given up, fairly stable 
relations under international law may be 
established even if the principle of 
expediency continues to prevail, pro- 
vided that the interests of the Soviet 
State are defined moderately and intelli- 
gently. 

If there is any hope at all that the 
Soviet leaders, present or future, may 
develop a more constructive attitude 
toward international law, what policies 
of the non-Soviet world are likely to 
assist in this process? 

First, the Soviets must be continually 
impressed with the strength and sta- 
bility of the so-called capitalistic world. 
This means that we— i.e., the whole 
non-Soviet world, not just the United 
States— must not only remain strong 
militarily, but must have a rate of 



89 



economic development and general 
progress at least equal to that of the 
Soviet bloc. At the same time, we must 
continue to make it plain that we are 
men of peace and that we are not 
opposed to genuine peaceful co- 
existence with the Soviet bloc if the 
Soviet leaders make it possible. We 
should also try to break down the 
intellectual isolation of the Soviet coun- 
tries by encouraging their contacts with 
the non-Soviet world. 

Second, our agreements with the 
Soviet Union and its allies should be so 
designed that it will be to their own 
continuous advantage to keep them. In- 
deed, this is a good principle to be 
followed in all international negotiations. 
As Professor Briggs has well said, "the 
treaties most likely to be observed are 
those which recognize and develop with- 
in a legal framework a positive mutuality 
of interests." The making of such treaties 
obviously requires much wisdom and 
skill. It is also wise to make all agreements 
with the Soviets in writing, and as clear 
and specific as possible. 

Third, it should be our normal policy 



to interpret international law fairly and 
to apply it in good faith. Indeed, if the 
non-Soviet nations should cease to take 
international law seriously and get into 
the habit of manipulating it for immedi- 
ate advantage, why should the Soviets 
behave differently? Such behavior will 
merely confirm their belief that law is 
an instrument of policy cynically used 
by the capitalists for their own gain. 
The only way to teach the Soviet 
leaders the value of international law is 
for us to practice it. If, by way of 
exception and for our self-preservation, 
we are compelled to depart from law, 
we should make it clear that the be- 
havior of our adversaries leaves us no 
choice. 

Fourth, we must react firmly and 
vigorously against all clear violations of 
international law to our detriment. In- 
ternational law itself provides for 
measures of retaliation and reprisal— not 
necessarily armed reprisals— against its 
violations. We should use all suitable 
means to prove that violations of inter- 
national law do not pay; and that good 
faith does pay. 



t 



90 



THE SOVIET VIEW OF INTERNATIONAL LAW 



O.J. Lissitzyn 



When we begin the study of interna- 
tional law, we soon come to realize that 
it is, indeed, a useful instrument in our 
relations with many other states. But 
the question probably arises in the 
minds of most of you: Does it do any 
good at all to talk about international 
law when it comes to dealing with the 
Soviet Union and its allies? Can we 
expect them to pay heed to any rules of 
international law, or to carry out any 
obligations that they may assume? 
Indeed, is there anything in common in 
their attitude toward international law 
and ours? Or is the gap so great that 
there is no place at all for international 
law in the relations between the two 
sides in the cold war? Sometimes one 
encounters extreme views on these ques- 
tions. On one hand, some people seem 
to assume that there is no significant 
difference between the Soviet and the 
Western attitudes— that we can expect 
international law to operate in the 
relations between the Soviet Union and 
other countries pretty much the same as 
it operates in the relations of the non- 
communist states among themselves. 
This is perhaps more commonly encoun- 
tered nowadays in foreign countries, 
especially the so-called neutralist na- 
tions, than it is in the United States. At 
the other extreme there is the view, 
perhaps more commonly held in the 
United States, that international law is 
virtually irrelevant to our relations with 



the Soviet Union and the Soviet bloc in 
general. Sometimes this view takes the 
form of denial of a universal interna- 
tional law which is binding on both 
sides in the cold war. Sometimes this 
view is associated with the impression 
that the Soviets are either completely 
ignorant, or completely contemptuous 
of international law. There is also the 
notion that the Soviet Union can never 
be expected to comply with interna- 
tional law except when it is to their 
advantage to do so, while in the West, 
particularly in the United States, inter- 
national law is always obeyed. I suggest 
that the truth, as is often the case, is 
somewhere between these two extreme 
views. 

At this point perhaps we might 
digress a little and ask ourselves; What 
do we mean by universality of a system 
such as the system of international law? 
Let me suggest that there are three 
different levels at which we can discuss 
universality in connection with interna- 
tional law. First, the verbal level; 
second, the level of action; and third, 
the level of motivation. Let me speak 
about the specific attitudes on each of 
these levels. 

Now on the verbal level— that is, the 
level of words— the Soviets purport to 
accept the existence and binding force 
of international law in the relations 
between the communist and the non- 
communist world. As a matter of fact. 



91 



they make it a point in public pro- 
nouncements to stress international law 
and its study. As far back as October 5, 
1946, shortly after the end of the 
Second World War, the Central Com- 
mittee of the All-Union Communist 
Party directed that special attention be 
given to the study of international law 
in their institutions of higher learning, 
and indeed, international law courses 
are given by many Soviet university law 
faculties. 

There is a growing flood of Soviet 
publications on international law, in- 
cluding textbooks, books of collections 
of documents and other source ma- 
terials, monographs on many specialized 
aspects of international law, and numer- 
ous articles in periodicals. Sometimes in 
these writings, international law is said 
to be "an attribute of culture and 
civilization" and an indispensable condi- 
tion of modern international relations. 
Four years ago a Soviet Association of 
International Law was set up which 
became a branch of the worldwide 
International Law Association and 
which publishes a Soviet yearbook of 
international law. The president of this 
association, Professor Gregory Tunkin, 
is also legal adviser of the Soviet Foreign 
Office. Three years ago he gave some 
lectures in English at the Hague 
Academy of International Law in the 
Netherlands, in which he stressed the 
relation of international law to peaceful 
coexistence. Tunkin is probably today 
the leading Soviet authority in the field 
of international law, and he is a very 
intelligent man. He speaks well and 
presents the Soviet point of view with 
relative moderation and in terms which 
do not always seem to be too different 
from our traditional Western terms. 
Nevertheless, as I shall point out later, 
he, too, like all other Soviet writers and 
speakers, while stressing the importance 
and universality of international law, 
finds it necessary and desirable to point 
out certain special attitudes and ap- 
proaches. International law is very 



frequently appealed to by the Soviet 
Union in diplomatic notes, in debates at 
international conferences, and especially 
in the United Nations. As a matter of 
fact, I am told by people who have been 
close observers of what is going on in 
the United Nations, that the Soviet 
representatives are perhaps more and 
more stressing legal arguments, and are 
gaining some attention, especially from 
people coming from the so-called un- 
committed or neutralist nations, or the 
new nations. 

International law is also mentioned 
in Soviet legislation. Finally, I will 
conclude by quoting Khrushchev him- 
self. Just before he came to the United 
States in 1959 to see President Eisen- 
hower and to make a tour of our 
country, he said, in a domestic speech: 
"We are well aware that without observ- 
ance of the standards of international 
law, and without the fulfillment of the 
undertakings assumed in relations be- 
tween states, there can be no trust, and 
without trust there can be no peaceful 
co-existence." Well, so far so good. It 
seems that the Soviets, at least on the 
verbal level, accept the binding force of 
international law, its reality and its 
importance; but even on this verbal level 
this acceptance is not unqualified. All 
through the Soviet writings runs the 
thread of a claim of the right to reject 
any part of international law which does 
not fit in with Soviet policy. This was 
perhaps most boldly stated by Professor 
Kozhevnikov, who later became, and 
was for several years, the Soviet Judge 
of the International Court of Justice. In 
a book written in 1948 called The 
Soviet State and International Law, 
which was perhaps the most representa- 
tive and most outspoken book on inter- 
national law written by a Soviet profes- 
sor in the late Stalin period, he said, 
"Those institutions of international law 
which can facilitate the execution of the 
stated tasks of the USSR are recognized 
and applied by the USSR, and those 
institutions which conflict in any 



92 



manner with these purposes are rejected 
by the USSR." 

Now, other Soviet writers rarely put 
it in quite this blunt fashion, especially 
since the death of Stalin, when there has 
been a certain note of moderation in 
some of the writings. This claim is put 
in much milder terms. But basically 
there seems to be very little difference 
between what Kozhevnikov said, and 
what was said in 1958 in the Hague 
lecture by Tunkin, whom I have already 
mentioned as the legal adviser to the 
Soviet Foreign Office, and one of the 
most prominent of the Soviet interna- 
tional lawyers. Now as I said, Tunkin 
speaks in a voice of relative moderation 
and in terms which don't sound too 
strange to Western ears, but what he 
said about international law and co- 
existence was substantially this: (I have 
no convenient quotation here.) He 
spoke of the international law of our 
times as resting on agreement of two 
sides in the cold war. He even called it, 
in a section heading of his lectures as 
printed, "the new doctrine of agree- 
ment" What it amounts to is that only 
those rules are binding on the Soviet 
Union, and also on the noncommunist 
nations, which are accepted by both, 
either through express agreement, that 
is, by treaties, or by tacit agreement, 
that is, customary international law. In 
this connection, I may add that Soviet 
writers generally regard treaties as the 
most important source of international 
law; they admit that customary interna- 
tional law exists, and that custom is a 
source of law, but they stress that in 
modern times treaties are more im- 
portant This, of course, happens to 
coincide with Soviet interest, since cus- 
tomary law— large parts of it— was estab- 
lished long before the communist 
regime in Russia came into existence. 
There is little the Soviets can do about 
changing these customs. Sometimes 
they have a chance to make a change or 
to throw their weight in the direction of 
a change which they desire, of course, 



but nevertheless much of the customary 
international law is old and they didn't 
have anything to say about its coming 
into being. Treaties are something which 
they can agree to or not agree to, and if 
there is a treaty they don't want to 
agree to, well, it's not binding on them. 
So they prefer to deal with international 
law primarily in terms of treaties which 
are expressly agreed upon. So then, the 
Soviet writers bluntly or more mildly 
say that the Soviet Union may reject 
certain parts of international law and 
that it is bound only by those parts 
which it accepts. I must point out, 
however, that in fact Soviet writers 
specify very few rules which they reject. 
As a matter of fact, some parts of the 
standard text used in Soviet universities 
on international law sound rather like 
recitals of rules which are well known in 
the West, and there is nothing new. 
Some other parts, to be sure, do present 
new points of view. Of course, there are 
certain rules which the Soviets interpret 
in a way different from the interpreta- 
tion given the same rules by the United 
States: for example, this is true of the 
rules concerning the width of territorial 
waters, certain rules concerning the 
sovereign immunity of states, and so on. 
Differences in interpretation of rules of 
international law, of course, are not 
new, and such differences exist among 
noncommunist countries. They existed 
long before the communist regimes 
appeared, so that in itself, they are not 
terribly significant. 

There's another point, however, 
which is made by some Soviet writers; 
not as constantly as the point about 
accepting or rejecting certain parts of 
international law, but nevertheless, it's a 
point well worth mentioning because it 
coincides with certain doctrines in the 
field of politics and history. Shurshalov. 
who is a young Soviet writer on the law 
of treaties, has emphasized in one of his 
books that treaties are valid only so long 
as the objective historical conditions in 
which they were made continue to 



93 



exist. There are some hints of the same 
doctrine being extended not only to 
treaties, but to customary rules. In 
other words, history, according to this 
view, is not static; it's dynamic; it's 
moving; it's developing; what may be 
good today may become obsolete 
tomorrow, and this, as I shall point out 
later, reflects the basic Soviet interpreta- 
tion that the history of our times has 
changed in the direction of greater 
power being developed and exercised by 
the communist governments. But this 
doctrine that Shurshalov advocates, of 
course, does suggest that not only are 
they free to accept or reject interna- 
tional law at the starting point, but that 
they may later say, "Ah, we accepted 
this rule, yes, but the objective condi- 
tions of historical development have 
now made this rule obsolete." 

Another point on which they depart, 
even in words, from universality is that 
they do claim that not only can they 
reject those rules which they don't like, 
but they also claim and take pride in 
claiming that they have been instru- 
mental in introducing new principles 
into international law; for instance, such 
principles as self-determination, non- 
aggression and nonintervention. They 
point to earlier Soviet pronouncements 
immediately after the October Revolu- 
tion, in which these principles were 
proclaimed to the world, and they say 
that these are now accepted, or on the 
way to being accepted, universally. You, 
of course, wonder if they themselves 
live up to these principles, and this I will 
mention later on. 

Also, there is the claim that a new 
socialist international law is being 
created in the relations between the 
socialist states, so-called— the states 
ruled by the Communist Party— but 
when it comes to specific details of this 
new socialist international law, they are 
rather vague, and, as a matter of fact, if 
one looks at treaties between members 
of the Soviet bloc, one often finds an 
amazing similarity between such treaties 



and treaties between Western states; for 
instance, treaties on the status of forces 
—that is, on jurisdiction over members 
of foreign armed forces stationed in a 
country. As we know, we have many 
such agreements, the most important of 
which is the NATO Status of Forces 
Agreement. The Soviets have troops 
stationed in certain European countries, 
and they have also made agreements 
which in large part seem to be almost 
copied from ours. There are some differ- 
ences, but the treaties are amazingly 
similar. The same is true of some trea- 
ties on consular relations between com- 
munist states. 

So, on this matter of new socialist 
international law emerging in the rela- 
tions between the socialist states, it is a 
little unclear just what is new, although 
they sometimes stress the principle of 
proletarian solidarity, proletarian inter- 
nationalism, etc. But these sound more 
like political, rather than legal prin- 
ciples. And even though they do claim, 
with some pride, that they are devel- 
oping this new socialist international 
law, they, however, hasten to reaffirm 
that this does not mean that there is no 
universal international law. They say, 
"Yes, we have certain new principles in 
relations with socialist states, but that 
does not mean that there is no body of 
rules binding on all states— capitalist and 
communist as well." 

So on the verbal level they do recog- 
nize, or are forced to admit, the uni- 
versality of international law. Well, what 
about the second level, the level of 
action? Do they actually follow interna- 
tional law, or do they completely ignore 
it? Now at this point I would like to 
digress again and say that in general any 
kind of relations between two or more 
nation-states would be impossible with- 
out some mutually recognized rules of 
behavior, recognized not only verbally, 
but on the level of action. So long as 
both sides desire to have some kind of 
relations, the sanction for the non- 
observance of the rules governing such 



94 



relations is the impairment of the rela- 
tions and of the advantages of such 
relations. For instance, take the most 
elementary example: both the Soviet 
Union and the United States at present 
choose to maintain diplomatic relations 
with each other. We have an embassy in 
Moscow; they have an embassy in Wash- 
ington, and the same, of course, is true 
not only of the United States and the 
Soviet Union, but many other so-called 
capitalist countries and the Soviet 
Union. On the other hand, we do not 
choose to maintain diplomatic relations 
with communist China; there is a differ- 
ence here. But so long as we do choose 
to maintain diplomatic relations with 
the Soviet Union, and so long as this 
desire is reciprocal, relations are main- 
tained. But in order to have diplomatic 
relations, you have to have some mini- 
mal rules about the people who are 
diplomats. These are the rules which are 
commonly called diplomatic privileges 
and immunities. You couldn't carry on 
diplomatic relations on a fairly regular, 
functioning basis if rules of diplomatic 
immunity were completely disregarded. 
And so, we do find that in the relations 
between the Soviet Union and the 
United States, diplomatic immunities, 
although occasionally disregarded, or 
ocassionally argued about in specific 
situations or incidents, are by and large, 
observed on the level of action, as well 
as the level of words. 

There are certain other areas of 
international law in which this is largely 
true although there are always some 
qualifications and exceptions. It is 
largely true of the freedom of the seas. 
As Admiral Mott said yesterday, there 
may be a Contingent Plan for certain 
reprisals against the Soviet Union in case 
it starts a blockade of Berlin or mis- 
behaves in some other fashion. But so 
long as it doesn't do so we generally 
respect its rights to navigate the high 
seas, to fly over the high seas, and again 
there is reciprocity. But you might say, 
"Well, what about the RB-47?" This is 



one of the exceptions that I have in 
mind. But, as Admiral Mott pointed 
out, if and when we do have some kind 
of a pacific blockade, or whatever you 
call it, whereby we would try to inter- 
rupt the shipping of the Soviet Union, it 
might quickly become a kind of a 
limited naval war, which in turn might 
turn into or degenerate into an all-out 
war. But so long as we don't want that 
to happen, and we have no specific 
reason for denying freedom of the seas 
to them and vice versa, we continue by 
and large to observe the freedom of the 
seas, and in this case when I say we I 
mean both sides. 

There are certain other fields. There 
is the field of trade, of communications. 
You can send a letter to Moscow by 
ordinary mail and get a reply by ordi- 
nary mail, etc. The Soviet Union partici- 
pates in a number of agreements for the 
conservation of maritime resources: 
whales, fish, etc. There is a large number 
of areas which I could go on enumer- 
ating, in which there is an actual "give 
and take" and a reasonable amount of 
co-operation and observance of interna- 
tional law between the two sides. The 
Soviet Union has been a party to some 
3,000 multilateral and bilateral treaties 
over the course of its existence. The 
United States and the Soviet Union 
today are both parties to some 70 
multilateral treaties, and, of course, we 
have also some bilateral agreements. The 
Soviet Union takes an active part in 
conferences designed to develop and 
codify certain parts of international law, 
protecting, of course, its own interests. 
A conference on the law of the sea 
which was held in Geneva in 1958, and 
which developed the four conventions 
on the law of the sea, witnessed a very 
active participation by the Soviet Union 
and the bloc countries, and the product 
of the conference, the four conventions, 
have certain marks on them of this 
participation. The Soviet Union partici- 
pated again in 1960 in another con- 
ference on the law of the sea, which 



95 



failed to reach an agreement because the 
Soviet, among other states, insisted on 
rejecting the 3-mile limit and also a 
compromise solution that the United 
States supported, a 6-mile limit for 
fishing purposes. 

Last spring, both the Soviet Union 
and the United States, as well as most 
other nations of the world, participated 
in a conference to codify the law of 
diplomatic privileges and immunities, 
which was held in Vienna and which 
produced a convention, which the 
United States has signed. And here 
again, on this level of making of new 
conventions on international law, the 
Soviet Union participates. Of course, it 
goes without saying that violations of 
international law, of treaties as well as 
customary international law, by the 
Soviet Union, have been numerous. A 
statistical compilation would probably 
be impossible and meaningless, because 
it is not only a matter of counting 
specific violations, which is difficult 
enough in itself, but is also a matter of 
their relative significance or importance. 
It would be, of course, a distortion of 
reality, to say that only the Soviet 
Union violates international law, while 
the Western nations never do. It is well 
known that international law through- 
out its existence for some 300 or 400 
years has been violated by various na- 
tions. Here again, it cannot be said that 
you can put down in some sort of table 
all the numerous violations. It would be 
impossible to compile such a table. Of 
course, it has always been recognized 
that the observance of international law 
has been far from perfect. Nevertheless, 
the Soviet conduct in this respect has 
given the widespread impression, which 
is probably justified, that violations of 
international law by the Soviet Union 
are particularly frequent and particu- 
larly threatening to the maintenance of 
international stability. This impression 
has been reinforced by the Soviet resort 
to international law as a propaganda 
slogan or a set of slogans such as 



self-determination, nonintervention, 
nonaggression, sovereignty, and 
equality. Now, these slogans appeal; 
they appeal especially to the smaller 
nations, the weaker nations, those na- 
tions that are emerging or want to 
emerge from a colonial status, or those 
nations that have felt, as some Latin 
American countries have for many 
years, that they were under the pressure 
of the stronger powers, especially the 
United States. These slogans are appeal- 
ing, and they are appealing to men and 
women of good will in the world every- 
where. They sound so nice. 

Now here again, of course, it would 
be false to say that the use of legal 
doctrines as slogans for propaganda pur- 
poses is something which the Soviet 
Union invented. Of course, such use 
existed to some degree before the Soviet 
Union was ever heard of. Nevertheless, 
the manipulation of high-sounding inter- 
national law doctrines as propaganda 
slogans has reached new heights in 
Soviet practice. As symbols of rectitude, 
these are slogans which stir up the 
emotions by making it appear somehow 
that the Soviet Union is on the side of 
the angels, the side of good. To knowl- 
edgeable and unprejudiced observers, 
this manipulation has appeared particu- 
larly blatant and cynical, especially 
when we consider such slogans as inter- 
vention and self-determination. What 
about Hungary? And Hungary is only 
one of the most obvious examples of 
the Soviet disregard of these very princi- 
ples, as today, of course, the United 
States has tried to make quite clear. 
What about Soviet behavior in Ger- 
many? Is it consonant with the principle 
of self-determination? And so it goes. 
There is quite a gap between Soviet 
words and Soviet actions. 

There's another Soviet trait in the 
area of international law which I think 
also should be kept in mind on the level 
of action— that the Soviet Union has 
almost invariably rejected any proposal, 
any institution, that provides for third 



96 



party adjudication, or third party settle- 
ment of disputes. It has not submitted 
any of its disputes to the International 
Court of Justice, for instance, or to 
arbitration, except some very minor 
commercial disputes. We have time and 
again proposed to them to submit, for 
instance, our claims for our aircraft shot 
down by Soviet forces, the latest ex- 
ample being the RB-47, to adjudication 
by the International Court of Justice, 
but they have consistently refused to do 
so. And again this is not inconsistent 
with their basic outlook on the world; it 
is, as a matter of fact, quite consistent, 
because, they say, in the relations be- 
tween capitalist and communist theory, 
who can be impartial? The International 
Court of Justice, they say, is loaded 
with capitalists. A large majority are 
capitalist lawyers. An international 
court, of course, decides by majority; 
there is no veto in it. There is no rule of 
unanimity. In another area, we see this 
quite clearly today in Soviet proposals 
concerning the reorganization of the 
United Nations on a so-called tripartite 
basis, the Soviet bloc, the Western bloc, 
and the uncommitted countries being 
the three parts, each of which would 
have in effect a veto power which the 
Soviets already enjoy in the Security 
Council as we do; but this would 
amount to veto power in the General 
Assembly where today there is no rule 
of unanimity, a two-thirds majority 
being sufficient to pass a resolution on 
questions of importance. 

But perhaps the greatest difference 
between the Soviet and the Western 
worlds in relation to international law— 
the difference which perhaps is of most 
significance in terms of universality of 
international law— is the difference on 
the third level which I mentioned, 
namely, that of motivation. Now, here 
again let me point out that I am not 
claiming that differences in motivation 
with respect to the observance of inter- 
national law have not existed and do 
not exist among the noncommunist 



countries. Of course, they do. As a 
matter of fact, this is an area in which 
further studies are needed to shed more 
light on why certain countries and 
governments in certain situations ob- 
serve international law while others do 
not, and what are the attitudes toward 
the observance of international law by 
what my friend Professor McDougal has 
called the governing elites of various 
nations— the decision-makers, as well as 
the masses. All of this is an area which 
has not been properly studied, but when 
we look at Soviet ideology we find 
certain peculiar aspects which find no 
counterpart in the Western world. What 
are these? Here again I must digress into 
the more general field of Soviet ideology. 
Basic in the Soviet interpretation of 
history is the doctrine of the class 
struggle. History is viewed as a product 
of the class struggle. Now what does 
class struggle mean? They believe that 
all modern societies are governed by a 
particular social class and that in all 
so-called capitalist countries the govern- 
ment is in the hands of the capitalists, 
that is, the owners of the means of 
production— shareholders of industries 
and managers of industries who exploit 
the workmen; and for this purpose— the 
purpose of assuring this exploitation- 
were created institutions of private 
property and law. Law is not used as an 
impartial system of justice; it is used as 
an instrument of the policy of the ruling 
class. They say, furthermore, that there 
is a basic, insurmountable antagonism 
between the interests of the exploiting 
class, the capitalists, and the interests of 
the proletariat, the workmen, which 
permits of no basic reconciliation. The 
only way that change can be brought 
about is to overthrow the rule of the 
capitalists and to substitute for it gov- 
ernment by the workers, who thereby 
become the ruling class, and, of course, 
the communists are regarded as leaders 
of the working class. And so there are 
two kinds of states in the world today, 
those ruled by the capitalists, and those 



97 



ruled by the workers and led by the 
Communist Party. 

Now these two kinds of states both 
have their own separate systems of law. 
In each kind of state the law is an 
instrument of the particular ruling class 
and is directed primarily at the other 
ruling class, to suppress it and exploit it, 
or else, as in the case of the working 
class, to root out the remnants of 
capitalism and to maintain the power of 
the Soviet state. Now, if that is true, 
then how can there be a universal 
international law? It would be either an 
instrument of the policies of the capital- 
ists or an instrument of the policies of 
the working class led by the Communist 
Party, but how can there be a single 
international law which will represent 
the interests of both? 

This is a theoretical problem which 
has given them continual trouble, and 
they are still writing articles trying to 
make suggestions why this is possible, 
how to have a universal single interna- 
tional law despite differences in the 
class basis of the two systems. But 
whatever may be the theoretical diffi- 
culties, the basic ideology is to regard 
law as an instrument of the ruling class 
and to look forward to a Utopian time 
in the future where all law would 
disappear in a classless society, where all 
organized coercion by the state would 
be abolished and people would live in 
sweetness and peace without law. That's 
the Utopian vision. In the meantime, 
however, there is this struggle going on 
between the capitalists and the workers 
—a worldwide struggle. Ultimately the 
workers are going to win— this has been 
historically determined, according to 
the communists. But as long as this 
struggle lasts, there may be temporary 
accommodation necessary. This is what 
they call the period of transition, and 
this temporary accommodation may 
well call for peaceful relations with the 
capitalist states, an avoidance of ex- 
treme friction which might lead to war 
which they don't want to see at this 



particular time because they may be too 
weak or because the war may be too 
destructive. For these purposes, interna- 
tional law is accepted as an instrument 
to make possible this temporary co- 
existence in the period of transition. 
But, eventually, of course, they believe 
that they will win, and that this tem- 
porary accommodation is not going to 
be lasting. 

Now what is the meaning of this? 
The meaning for motivation of interna- 
tional law observance is that they do 
not believe that international law is part 
of a system, a continuing system of 
stability in international relations. There 
is no real community of interest be- 
tween communist and noncommunist 
states, according to their doctrine. The 
two worlds are inescapably hostile to 
each other. Now, there is a difference 
between that and the traditional West- 
ern acceptance of the system of states as 
an essentially permanent, stable system. 
That doesn't mean that it's unchange- 
able, but it is a system which we don't 
expect to disappear in the very near 
future as a result of our subverting it. 
For hundreds of years a certain system 
has existed and has come to be accepted 
as stable and, though subject to change, 
not subject to violent destruction in the 
near future. This gives, in the West, a 
different perspective on the observance 
of international law. When you believe 
the system is stable, you attach more 
importance to such matters as good 
faith, stability, reciprocity, considera- 
tions of confidence, value of property— 
what you do today may influence 
action toward you ten or twenty years 
from now. These elements are much 
weaker in the Soviet attitude toward 
international law because the Soviets 
reject the very idea of lasting accom- 
modation and a single world system, 
and therefore while they accept interna- 
tional law as an instrument, and a very 
useful instrument, to prevent the more 
acute friction with the capitalist world, 
they also view international law, as I 



98 



pointed out, as a set of slogans which 
can be used in a way which is hostile to 
the existing system, although the slo- 
gans themselves as properly interpreted 
and applied are not. 

Now, these two uses of international 
law, the propaganda use on the one 
hand, and the actual observance of 
international law on the other, are basic 
and have been basic in the history of the 
Soviet Union. This reality must be 
always kept in mind. International law 
will be observed because it suits the 
Soviet Union for certain purposes at 
certain times, but it also will be used to 
attack the West at its weakest points 
psychologically by propaganda. It will 
also be used in some situations where 
the West puts too much trust in the 
observance of international law by the 
Soviet Union; such trust may be, of 
course, unwise. 

I may also point out that there are 
certain characteristics of the Soviet 
system of society, apart from ideology, 
which also make for differences in the 
attitude toward international law. The 
Western society in which international 
law has developed over the centuries has 
been a pluralistic one. There are many 
private interests, especially business and 
commercial interests, which have found 
in international law— certain parts of 
it— valuable protection of their business 
enterprises, etc. And more generally, in 
a pluralistic society, lawyers appear as 
spokesmen for particular group inter- 
ests—spokesmen who emphasize the im- 
portance of the maintenance of law as 
well as its development, and who there- 
by bring about by their actions, their 
sayings, and their influence in govern- 
ment, a general law habit into being; 
that is, the habit of thinking of govern- 
mental matters in terms of legality or 
law rather than sheer power and ex- 
pediency. In the Soviet system, there is 
no pluralistic group arrangement of this 
kind. Everything is subordinated to the 
hierarchy's decision as to what is good 
for the system and society. As a matter 



of fact, lawyers as a profession have 
very little influence in the Soviet Union 
and have a very unimportant standing in 
society. If there is trouble with the 
government, of course, a lawyer nor- 
mally does try to help his client, but in 
the area which is very important in the 
West, namely, civil law, there is very 
little for lawyers to do in the Soviet 
Union. Of course, there are enterprises 
which have lawyers writing contracts 
with other enterprises and that sort of 
thing, but this is of very minor im- 
portance compared with the role of 
lawyers in our highly industrialized, but 
still basically private enterprise, society. 
In the United States there are some 
250,000 practicing lawyers. In the 
Soviet Union I don't think there are 
more than 10,000; but it is not only a 
matter of numbers, it is also the matter 
of their standing in society— their rela- 
tion to the decision-making process. In 
other words, in the Soviet Union the 
law and the lawyer are in a much 
weaker position than they are in the 
West to influence the attitudes of the 
governing elite or the decision-makers, 
and this extends to international law 
because the law habits which have been 
developed in our domestic concerns and 
domestic society are psychologically apt 
to be carried over into the international 
field, and it is perhaps no historical 
accident that the United States and 
Great Britain— where, especially in the 
United States, lawyers have been promi- 
nent in domestic politics and domestic 
government— historically have stressed 
international law in international affairs. 
The Soviet concept of morality also 
is ideologically different from ours; here 
you might say that I am exaggerating, 
but I'm not. The Soviet writers are quite 
clear on this— in the period of struggle 
against capitalism, the highest morality 
means doing everything to help com- 
munism win, since communism is the 
great hope of humanity's future. Any- 
thing that helps the victory of com- 
munism is moral and vice versa. 



99 



Now, here again there seems to be no 
room for a feeling of moral obligation 
to obey international law. I am not 
saying that in the United States, or in 
the West in general, a feeling of moral 
obligation is necessarily the most im- 
portant reason why international law is 
observed. Undoubtedly considerations 
of expediency do enter into it in a very 
large degree, but in the West, again, in a 
pluralistic society, there are some 
people at least who feel it is morally bad 
to break the law. In the Soviet Union 
this would be, with respect to interna- 
tional law, difficult to justify as logical 
and unlikely to find proper expression, 
although it may be privately felt. Of 
course, there is another difference— here 
in the West, or at least in the United 
States, we have freedom of expression, 
which means that when the government 
does something which is questionable 
from the standpoint of international law 
or morality, there are people who may 
criticize the government and criticize it 
openly in the press and public state- 
ments. In the Soviet Union this is never 
done. You can't find a single Soviet 
writing on international law or interna- 
tional politics in which it is admitted 
that the Soviet Union has ever violated 
international law. This is not true in the 
United States. You do find writings, 
quite a few of them, pointing to certain 
violations of international law by the 
United States; but not in the Soviet 
Union. 

Well, now what are to be our conclu- 
sions? There are areas in which there are 
certain accommodations, even a certain 
measure of cooperation (for instance, in 
the conservation of fisheries) between 
the communist and the noncommunist 
world. It's possible and apparently 
desirable for both, so long as the 
policies of both sides call for the con- 
tinuance of relations on a basis short of 
all-out war, for international law to have 
a part to play. Treaties have been made 
and continue to be made between the 
two sides. They may be relied upon so 



long as the observance of such treaties is 
of mutual advantage. Of course, it 
would be nonsense to rely on treaties 
which the Soviet Union had signed and 
which it feels it is no longer in its 
interest to observe. This is a matter of 
careful diplomacy, of course: To reach 
accommodations and to formalize these 
accommodations in treaties, in such a 
way that the observance and continual 
existence of the accommodations and 
the observance of the terms of the 
accommodations as expressed in treaties 
will be to the advantage of both sides. 
What about the prospects? Well, it 
seems to me that the basic communist 
attitudes toward society, history and 
international law, are not going to 
change overnight. As a matter of fact, 
the new draft program of the Commu- 
nist Party of the Soviet Union which 
was published some weeks ago, is ample 
proof that the basic ideology remains 
unchanged, and perhaps even becomes 
more militant in certain ways. From a 
longer range point of view, predictions 
of course are difficult, but it seems to 
me that the outcome in this, as in many 
other fields, will depend on the balance 
of power between the two sides, and by 
power I do not mean just military 
power although I include it, but also 
economic power and power over public 
opinion. If the noncommunist world 
remains strong in relation to the com- 
munist world, economically, socially, as 
well as militarily, as generations pass, 
and as Soviet society assumes a more 
stable form, perhaps the ideology will 
gradually be eroded and the Soviets will 
settle down in their ways, and there 
may be a gradual softening of the 
hostility of the Soviet leaders toward 
the outside world, and therefore a 
greater appreciation of the long-run 
advantages of international law. In other 
words, a stable balance of power will 
create expectations of continued sta- 
bility and therefore of continuing 
advantages of legal regulation of the 
relations between the two sides. If, on 



100 



the other hand, the Soviet leaders have 
reason to feel that they are about to win, 
that the struggle is going their way, not 
necessarily in a military fashion for the 
time being, but in other ways, that they 
are continually becoming stronger eco- 
nomically, continually expanding their 
influence in the gray areas of the world, 
then they will be confident— they will be 
reassured and reaffirmed in their ide- 
ology, in their expectations of a complete 
triumph in a not-too-distant future. Un- 
der those conditions they are not likely 
to attach too much importance to inter- 



national law, but on the contrary, will 
probably increase its function as a propa- 
ganda tool, and at the same time use the 
doctrines I mentioned before, that as 
objective conditions change, interna- 
tional obligations become obsolete. It is 
up to us, by maintaining our strength in 
all fields, to demonstrate the advantages, 
in the long run, of lasting accommoda- 
tions, and eventually to bring about a 
greater degree of consensus between the 
two sides on what kind of regulation of 
their relations in legal terms is the most 
desirable. 



t 



101 



THE SOVIET VIEW ON INTERNATIONAL LAW 



Leon S. Lipson 



The background of Marxist-Leninist 
theory with which Soviet international 
law began permitted, and indeed re- 
quired, an analysis of the contemporary 
nation-state system from without. So 
long as a Soviet analyst could in thought 
remain outside the system, he found not 
much difficulty with the conundrum 
that has troubled so much of the writing 
about international law since the fic- 
tions of medieval universality broke 
down; that is, the problem to which you 
addressed yourselves yesterday after- 
noon, of the efficacy and even the 
existence of international law in the 
absence of a single compelling enforce- 
ment machinery. That problem has 
seemed especially acute to Western 
scholars under the influence of what 
they thought to be the implications of 
Austinian positivism. It was taken care 
of in early Soviet terms by a theory of 
the organization of society which re- 
fused to look on states as the ultimate 
aggregates of legitimatized power. In- 
stead it emphasized the controlling role 
of the bourgeoisie, a class that was 
supposed to overlie all society, regard- 
less of political boundaries, in those 
parts of the world which had attained 
industrial civilization. We must remem- 
ber that one of the reasons for calling 
upon the proletarians of the world to 
unite was that it was assumed that for 
many purposes the bourgeoisie of the 
world were already united. 



International law in a bourgeois 
setting, so the theory ran, was sanc- 
tioned by the transverse power of the 
global bourgeoisie up to the point where 
imperialistic conflict, caused by the 
growing contradictions of capitalist 
society and capitalist economics, was 
expected to lead to a breakdown of the 
system and open the way for a pro- 
letarian revolution and the establish- 
ment of socialism. Under this analysis, 
international law is trivial until the 
moment it becomes obsolete. 

Before and for some time after its 
occurrence, the Russian revolution was 
expected to touch off a continuing 
series of revolutions in the more indus- 
trial countries of, at least, continental 
Europe. As Taracouzio put it: 

With . . . the advent of a single 
world-wide denationalized, class- 
less society, there [would] be no 
place for a system of law regu- 
lating the international life of 
independent states. International 
law [would] be converted into a 
purely domestic inter-Soviet law, 
a federal law for a world-wide 
union of Soviet Socialist Repub- 
lics. 
It was no accident— to use a favorite 
Soviet phrase that is typically redun- 
dant, for under the philosophy of 
dialectical materialism it never is an 
accident— that the name given to the 
new federation at the time of its official 



102 



formation at the end of 1922 contained 
no geographically limiting term. "Union 
of Soviet Socialist Republics," while the 
word Soviet betrays its Russian origin, is 
in principle capable of expansion with- 
out incongruity to embrace any terri- 
tory on earth, or beyond. 

Events in the first five years after the 
1917 Revolution required a modifica- 
tion of these perspectives. The revolu- 
tion did not spread to all of Europe, 
though there were brief episodes in 
Germany and Hungary. Conflicts on the 
perimeter of the former Russian Empire 
with national and anti-Bolshevist forces 
along the Baltic coast, in Poland, and in 
the Caucasus led to temporary inde- 
pendence for some and to inclusion 
within the federation for others. For- 
eign intervention in Russia by some 
fourteen states from 1917 to 1922, 
aimed first mainly at supporting the 
forces continuing the war against Ger- 
many, later at safeguarding lives and 
property of foreigners and (in a con- 
fused and ineffectual way) assisting the 
efforts of anti-Bolshevist armies, may 
have helped to teach the Bolshevik 
publicists gradually that national bound- 
aries can be ignored in more than one 
direction and that territorial integrity 
has its uses. 

The stabilization of the international 
situation in the early twenties included 
on the Soviet side a partial settling- 
down to statehood. For strategic rea- 
sons it proved necessary to coexist 
temporarily with other states that re- 
mained opposed to the Bolshevik revo- 
lution; for economic reasons it was 
necessary for the young, ravaged, and 
very poor Soviet state to establish com- 
mercial relations abroad. True, Lenin 
and his successors have presented the 
case as though the economic necessity 
constrained not the Soviet Union but 
the outside world; but that was a 
common turn of Soviet, particularly 
Leninist, argumentation that did not 
affect the substance. 

In this state of affairs, Soviet Russia 



necessarily became a part of the interna- 
tional community that its leaders anal- 
yzed and assailed. Unable thenceforth 
to denounce all existing rules and 
processes of international law, the 
Soviet writers appealed openly to ex- 
pediency as the principle of selection. 
As a Soviet writer remarked at the time: 
The situation became rather 
ambiguous. On the one hand, 
Soviet Russia openly and loudly 
declared its denunciation of all 
treaties inherited from Tsarism 
and the Government of Kerensky, 
of all secret conventions, military 
debts, privileges of exploitation 
and imperialist obligations, and on 
the other, its official representa- 
tive often demanded the execu- 
tion of minor agreements, refer- 
ring to the fact that beneath the 
text were affixed the seal and the 
signature of the Imperial [Tsarist] 
Ambassador. 

As the strategic retreat of the New 
Economic Policy in 1921-1928 required 
some limited encouragement for foreign 
technicians and supply contracts, it was 
discovered that even the dictates of 
expediency can lead in different direc- 
tions for the short term and the long; in 
the longer-term interest of the Soviet 
Union it was thought to be expedient to 
display— and here the etymology is in- 
tentionally convergent— the status and 
stability of a state. Thus we saw the 
development, in the mid-twenties, of 
"The International Law of the Transi- 
tional Period," in which an attempt was 
made to reconcile the millennial per- 
spectives of pre-Revolutionary Marxist- 
Leninist theory with the contemporary 
coexistence of the Soviet Union and 
surrounding, or encircling states. At this 
time, the attitude of the Soviet Union 
to the traditional norms of international 
law was said by the conciliatory wing of 
Soviet international jurists to be what 
we might call consistently inconsistent, 
in the sense that the Soviet Union took 
what it liked and rejected what it did 



103 



not like in conformity to its general 
policies. Thus the Soviet Union was said 
to "exclude" such notions as extraterri- 
toriality, special concessionary privi- 
leges, and mandates; the Soviet Union 
"selected," meaning chose to accept, 
such institutions at consular and diplo- 
matic immunities; the Soviet Union 
"interpreted" other doctrines of inter- 
national law as its interests dictated. 

The differentiated attitude toward 
traditional doctrines of international 
law assured the conformity of doctrine 
to current foreign policy. It also, how- 
ever, presupposed an awkward conces- 
sion on what in the martial Soviet 
terminology was known as the theoreti- 
cal front. Here you must, for a minute 
or two, wander with me through the 
thicket of Marxist dialectic. It had been 
accepted teaching that social institu- 
tions, including law, must belong either 
to the base or to the superstructure. The 
base included preeminently the relation- 
ships of production. Between base and 
superstructure was a causal connection, 
operating preponderantly in one direc- 
tion: the base determined the super- 
structure, though it was at times con- 
ceded that in some respects the super- 
structure might have a back-influence 
on the base. But if anything was central 
to the Soviet Marxist catechism, it was 
that the base, in the Soviet Union, 
differed fundamentally from the base in 
the countries of capitalism. That served 
as a convenient polemical framework in 
the Soviet comparative analysis of in- 
ternal legal systems; but it seemed to 
imply that the same international law 
could not exist for the Soviet Union as 
for "bourgeois" countries. The dilemma 
was that if international law belonged to 
the superstructure, states with different 
bases could not be acknowledged to 
agree upon international rules so long as 
it remained dogma that base determines 
superstructure; but if one assigned inter- 
national law to the base, then one 
denied the primacy of productive rela- 
tionships and called into question the 



uniqueness of Soviet society which was 
so important for the self-image and the 
propaganda of the new leadership. 

If this problem had arisen in the 
early 1950s, when some of the founda- 
tions of Marxism-Leninism were being 
revisited, it could have been swept 
under by a stronger assertion of the 
superstructure's partial independence of 
the base. As it was, in the 1920s it was 
necessary to resort to two other ex- 
planations. The first of these was the 
compromise formula, which most Soviet 
definitions of international law have 
included since, to the effect that inter- 
national law is the complex of norms 
that regulate relations between states in 
the process of their struggle and collabo- 
ration, or conflict and cooperation, and 
so on. The second, which is a feature of 
the Stalin period, rests on the distinc- 
tion familiar to us and found in many 
corners of Soviet thought between form 
and content; just as a given internal 
legal, economic, or social institution can 
be bourgeois in form but Socialist in 
content, so differing bases can infuse a 
verbally identic form in international 
law with different content. A similar 
problem encountered later, after the 
Second World War, in characterizing the 
relations between countries in the 
Soviet camp, was met by the distinction 
between letter and spirit; the rules that 
were obeyed only in the letter by 
bourgeois countries were infused with a 
different spirit when applied between 
friendly socialist countries. 

During the 1920's and 1930's the 
Soviet Union carried on treaty relations, 
entered into international supply con- 
tracts, conducted exchanges of goods, 
took part in certain international organi- 
zations, and lived an international life, 
though at a level of activity far below 
that of the West. The more powerful 
Hitler became, the more traditional 
Soviet international law became. 

After the Second World War, the 
Soviet Union came to play a leading role 
in world politics. The Soviet attitudes 



104 



toward the structure of international 
politics have undergone certain changes, 
and the distribution of emphasis in 
Soviet international law is correspond- 
ingly being modified. The process was 
submerged for a while in the suppres- 
sion of foreign contacts that accom- 
panied the purges of the late nineteen 
forties and early fifties, but there is 
considerable evidence that it had begun 
well before Stalin's death. The chief 
factors in the process seem to have 
included, beside the temporary power 
vacuum in Europe and the emergence of 
a loosely bipolar confrontation, the 
increasing inability to tolerate high risks 
of large-scale war after the development 
of nuclear weapons, particularly after 
the development of the hydrogen bomb; 
the emergence of new nations from the 
passing of the old colonialism in Africa 
and Asia; and the coming to power in 
neighboring countries of regimes called 
socialist and prepared, on the whole, to 
act in accord with Soviet moves in the 
international arena. 

In Soviet foreign policy these factors 
led to the peace campaigns, in new 
form; the support for "national-libera- 
tion movements" even at the cost of 
temporary eclipse for local communist 
parties; the grant of a substantial 
amount of foreign aid, deployed of 
course for political effect, but often 
useful, nevertheless; and the renewal of 
the campaign for general and complete 
disarmament. (By the way, for those of 
you who might otherwise be inclined to 
date the Soviet campaign for general 
and complete disarmament from the 
Khrushchev period, it would be instruc- 
tive to consider the judgment made by 
George Grafton Wilson that: 

One of the most striking 
features of Soviet policy has been 
advocacy of complete disarma- 
ment, land, maritime and aerial, in 
contrast to the policy of most 
states, which have favored varying 
degrees of mere limitation of 
armament 



The striking thing about that quotation 
is that it was published twenty-eight 
years ago.) 

At present the Soviet Union is one of 
the most active participants in interna- 
tional relations and a prominent actor in 
the stages of international law. Though 
the Soviet Union is absent from some 
important international organizations, it 
is present and active in many, and some 
of these are closely concerned with 
problems of international law. It has 
sent judges to the International Court of 
Justice; it takes part in the work of the 
International Law Commission; its 
representatives make legal arguments in 
many bodies of the United Nations; it 
sends delegations to nongovernmental 
bodies like the International Law Asso- 
ciation and the International Associa- 
tion of Legal Sciences; its scholars pro- 
duce yearbooks of international law, 
textbooks on international law (one of 
which was published in English transla- 
tion not long ago), and numerous mono- 
graphs and articles; it is party to scores 
of bilateral and multilateral agreements, 
not all limited to the Soviet camp; its 
agents conclude many foreign trade 
agreements, providing for arbitration in 
Moscow before a vigorous, and, we are 
told, reasonably fair arbitration com- 
mission. 

This activity is enough to provide 
some evidence of the characteristics of 
Soviet utterances in international law. I 
should say the chief characteristics, 
aside from the current emphasis upon 
the principle of coexistence (to which I 
shall return), are that contemporary 
Soviet utterances in international law 
are predominantly official, moralistic, 
projective, offensive, and underdevel- 
oped. These traits are not wholly absent 
from Western work in international law, 
but the differences of degree are great. 
As someone has said, the difference 
between a difference in kind and a 
difference in degree is in itself onl\ l 
difference in degree. 

By official I mean that Soviet work 



105 



in international law supports current 
Soviet foreign policy with unremitting 
fidelity. Current Soviet foreign policy is 
always defended as legal; even past 
Soviet foreign policy is defended as legal 
though the policies may have been 
abandoned. Never is there a public 
statement by a Soviet private jurist 
calling into question the action of the 
Soviet government. To put it shortly, 
every Soviet writer on international law 
is on active duty. Variations do not 
often exist, and when they do they tend 
to be either on subjects of slight current 
practical importance, or on the question 
of which reason is to be preferred for 
supporting the legality of given Soviet 
behavior or the illegality of given be- 
havior of an adversary. Thus every 
utterance from a Soviet source on inter- 
national law must be taken as "inter- 
ested," that is, the source must be 
considered. This fact need not always 
tell against the intellectual quality of 
what they write; in this country, law- 
yers' briefs often make impressive con- 
tributions to the thinking of the judges 
to whom they are directed, but they are 
recognized nonetheless as briefs. 

Soviet argument on questions of in- 
ternational law is easy and cogent once 
you grant the invariant major premise 
that the Soviet Union is right. From this 
premise, combined with the minor pre- 
mise describing in tendentious terms 
whatever the Soviet Government has 
done or advocated in a particular case is 
right. 

If this judgment seems harsh to you, 
consider the following typical illustra- 
tion. A respected Soviet international 
jurist discusses the relations between 
states within the Soviet orbit when 
faced with internal law on the one hand 
and international law on the other: 

In the practice of the Soviet 
Union and the People's Democ- 
racies, conflicts between the 
norms of international law and 
the norms of internal law are 
impossible. The socialist states, 



strictly observing international 
law, cannot either impose or 
accept any of its norms that 
would contradict the principles of 
internal law of the contracting 
states. On the other hand, strictly 
observing international agree- 
ments, they cannot utter any 
norms of internal law that would 
contradict their international obli- 
gations. 

Again, on the right of asylum, a 
statement is made that convinces only 
one who is already committed to the 
major premise: 

The right of asylum is formally 
acknowledged by all states as a 
current principle of international 
law. In the USSR and the coun- 
tries of People's Democracy it is 
available to progres- 
sives. . . . Asylum in socialist 
countries is not afforded to diver- 
sionists, terrorists and others of 
that ilk. In many capitalist coun- 
tries, the representatives of lead- 
ing and progressive mankind are in 
fact deprived of asylum, which, 
however, is widely afforded to all 
sorts of diversionists, terrorists 
and traitors who have committed 
grave crimes against their home- 
lands. 

In final illustration of this official 
characteristic I should like to correct 
the statement made yesterday, referring 
to violations of treaty by the Soviet 
Government. This is contradicted by the 
following information furnished by the 
authoritative current Soviet textbook 
on international law, which reports: 
The Soviet Union, like the 
other socialist countries, stands 
for the strict observance of obliga- 
tions assumed under international 
agreements, as has been demon- 
strated by the entire history of 
Soviet foreign relations. . . . The 
Soviet Union's strict fulfillment of 
its obligations under the U.N. 
Charter and other international 



106 



treaties clearly demonstrates the 
Soviet Union's adherence to one 
of the basic principles of interna- 
tional law— the principle pacta 
sunt servanda. 

The imperialist states fre- 
quently refuse to fulfill their obli- 
gations, and make international 
treaties mere scraps of paper. But 
it must not be concluded from 
this that international treaty links 
are unstable. There are now strong 
social and political forces op- 
posing arbitrary action. 
Perhaps at the time when yesterday's 
speaker mentioned Soviet treaty viola- 
tions he did not have present in his 
mind the major premise that the Soviet 
Union does not violate treaties. 

Sovet international law is official, 
then. It also is moralistic. In interna- 
tional law, as in domestic law and some 
other areas of culture, Soviet thinking 
has undergone a transformation since 
the days when the Revolution was 
young. The very values and principles 
and even rules that used to be derided as 
bourgeois are now not merely accepted 
but expropriated. No longer is the 
Soviet Union presented as the bearer of 
a supermorality, transcending the hypo- 
critical and outworn morality of the 
bourgeois past; now it is the Soviet 
Union that has inherited the obligations 
that used to be borne by the bourgeoisie 
in the days of its vigor. A Soviet scholar 
mentions as one category of "generally 
recognized principles of international 
law": 

principles and concepts that 
entered into international law dur- 
ing the struggle of the bourgeoisie 
with feudalism under the influ- 
ence of the democratic and na- 
tional-liberation movement. They 
above all define basic rights and 
duties of states in international 
relations, and then guarantees of 
the rights of the population and 
various other sides of interna- 



tional life. Such are the principles 
of sovereignty and equal rights of 
states, non-intervention ... in- 
violability of state territory, the 
institutions of citizenship, plebi- 
scite, rights of asylum for political 
emigrants, etc. These democratic 
principles and institutions, which 
reflected in their time the de- 
mands of the broad masses who 
took part in bourgeois revolutions 
and national-liberation move- 
ments, were taken up and raised 
to a new height by the Soviet 
Union and other socialist states. 
The same moralistic tone can be ob- 
served in the Soviet espousal of disarma- 
ment, now about to be proclaimed not 
merely a policy, but also an existing 
principle of international law. Ex- 
pediency is (officially) shuffled; 
morality is trumpeted. 

Official, moralistic, projective. I use 
the term projective in the sense in which 
psychologists use it when speaking of 
the tendency to attribute to others the 
ideas and intentions that one must deny 
in one's self. For example, it is common 
to meet in Soviet Work condemnation 
of the United States for concluding 
agreements "involving unequal rights" 
as with the Marshall Plan— which, as you 
will remember, the Soviet Union kept 
some Central European satellites from 
joining when they wished to. For 
another example, I heard a Soviet schol- 
ar in Moscow insist to some colleagues 
planning a work on disarmament that 
they must expose the Western practice, 
which he said was to advocate dis- 
armament not merely hypocritically and 
without intending to disarm, but pre- 
cisely in order to lull the Soviet Union 
and other peace-loving states into a 
dangerous reduction of their armed 
strength. For a final example, when 
Soviet publicists a couple of years ago 
stepped up their campaign against pub- 
lished American discussion of orbiting 
space weapons, it was fairly clear that 
the Soviet Union was well on the way to 



107 



a decision to develop those weapons. 
Official, moralistic, projective, offen- 
sive. This term is used in the military 
sense. Soviet work in international law 
is predominantly polemical, and the 
polemics are based on the theory that 
the best defense is a good offense, like 
the theories held by the French general 
staff before the First World War or the 
old management of the Boston Red 
Sox. Thus the condemnation by the 
United Nations of the use of Soviet 
tanks and troops to suppress the Hun- 
garian revolution in 1956 is referred to 
by a Soviet scholar of international law 
in this way: 

The Soviet Union and other 
socialist states spoke out de- 
cisively against the efforts of the 
U.S.A. and its partners to make 
use of the United Nations Organi- 
zation as an instrument of inter- 
vention in the internal affairs of 
the Hungarian People's Republic 
after the counterrevolutionary 
rebellion, inspired by foreign re- 
action, had been crushed in No- 
vember 1956. 

The same observation of offensive- 
ness can be made of the continuing 
Soviet emphasis upon outlawry of ag- 
gression, or the combination of high 
military expenditures with high volume 
of disarmament campaigning, or the 
criticism of the American "voting 
machine" in the United Nations to draw 
fire away from the Soviet veto. You 
may not all be familiar with the old 
story of the visitor to Moscow who, on 
being shown a new subway station, 
admired the decoration but after a while 
asked his host why there weren't any 
trains, and was answered, "And what 
about the lynching of negroes in your 
Southern states?" (Correspondingly, it 
is no answer to Soviet criticism of U.S. 
racial discrimination to say that the 
Soviets have a housing shortage or even 
that they have racial discrimination.) 

My last epithet was that present-day 
Soviet international law was under- 



developed. In one sense it is underdevel- 
oped in that it seems designed to win 
the support and the votes of the under- 
developed nations, or, as we are now 
calling them in an effort to seem less 
condescending, the new or newly devel- 
oping nations. The analysis of interna- 
tional law, the choice of emphasis, the 
thrust of the moralizing, is calculated to 
appeal to ex-colonial countries and 
other suffering from the present fact or 
the recollection of Western domination. 
The attitudes that seemed to suit the 
Soviet Union in the days of its weakness 
are found appropriately transferable to 
those countries, and the gulf between 
(say) Mali or Bolivia and the Soviet 
Union of today is ignored. There are 
still gains to be made by playing the role 
of the underdog. 

In another sense, Soviet international 
law today is intellectually underdevel- 
oped. When I looked in yesterday on 
Professor Sohn's class I heard him say 
that, if you look at Soviet work in 
international law and deleted the obei- 
sances to Lenin and the criticism of the 
imperialists, what you would have left 
would be something like our own work 
in international law, only not as good. 
He attributed this to restrictions on 
access to Western literature and Western 
jurists. He did not, as I understood 
him— nor do I— make any reflections on 
the personal abilities of Soviet jurists. 
He might have added that in interna- 
tional law activity, as in many other 
respects, Soviet society today has points 
in common with the Western world of 
two or three generations ago, not with 
the Western world of today or (let us 
hope) with the Western world of, say, 
1984. The improvement in the quality 
of the work of the newer generation of 
Soviet jurists is welcome but still minor. 
Soviet international law, far from being 
the wave of the future, is intellectually a 
stagnant pool left over from the past. 

Professor Lissitzyn once put it more 
kindly when he wrote of their technical 
conservatism. Many rules are stated and 



108 



restated without criticism or reflection. 
Soviet doctrine on the sources of law 
follows older practice, as you know, in 
exalting treaties and depreciating cus- 
tom. Soviet doctrine on the supposed 
conflict between internal law and inter- 
national law comes down— except for 
relations between states in what is mis- 
leadingly called the socialist camp— on 
the side of the primacy of internal law. 
You heard yesterday of the rapid 
growth of legal doctrine on the conti- 
nental shelf from the time of President 
Truman's proclamation in 1945 to the 
Geneva Conference on the Law of the 
Sea in 1958; but before that the Soviet 
publicists had poured scorn on the idea 
that the rights of a coastal state to 
resources on the continental shelf were 
becoming recognized in international 
law. As one of them said: 

Thus a unilateral declaration 
proclaiming the seizure of open 
sea belonging to all and making it 
one's own property is turned into 
a norm of international law with 
the naked use of the machinery of 
the "legalization" of seizures, [the 
Americans declare, the satellites 
"follow," "scholarship" recog- 
nizes—and behold, a norm is 
born! ]. 

Technical conservatism does not 
mean that the Soviet Union is satisfied 
with the present state of generally 
accepted international law. Usually they 
cannot directly admit dissatisfaction 
without denying to the norms with 
which they disagree the dignity of being 
called existing rules of international law; 
and they can play as many games as we 
can with the lex lata and the tex 
ferenda, which may be rudely translated 
as calling the rule that helps you the law 
that is, and calling the rule that helps 
the other man the law that he wishes 
were the law. But they have other 
devices too. To look at those devices in 
perspective, let us return to their theme 
of peaceful coexistence. 

Peaceful Coexistence. In some 



pronouncements of Soviet authorities, 
the principle of peaceful coexistence has 
been said to be not merely the basis of 
the Soviet view of international law, but 
the basis of all international law today, 
and not merely the basis, but the key, 
or the core, of all international law. It is 
even said that international law today 
has become the law of peaceful co- 
existence. So important a concept 
deserves our attention. 

At the outset we are not to confuse 
"Peaceful Coexistence," in quotation 
marks and with initial capitals, with 
peaceful coexistence in the literal sense 
of the term. For example, it is clear that 
the term in Soviet usage does not mean 
condemnation of all war. Wars that 
serve the ends of Soviet foreign policy 
are given the label of wars of national 
liberation or revolutionary civil wars 
and are accepted as just. 

It is fairly clear also that the term in 
Soviet usage does not connote relation- 
ships of trust, friendship, agreement, or 
free communication between the 
peoples of the "peacefully coexisting" 
states. A striking confirmation of the 
freedom of maneuver left to the Soviet 
Union by the principle of peaceful 
coexistence was noticed last year by 
some close readers of the Soviet press. 
On January 30, 1962, Suslov, the chief 
Soviet Marxist theoretician (next to 
Chairman Khrushchev), made a speech 
at a conference of Soviet university 
teachers in the social sciences. His 
speech was published in Pravda on 
February 4th. According to that report, 
he said: 

Peaceful coexistence means the 
coexistence of states with dif- 
ferent social systems. It means the 
rejection of war, the settlement of 
disputes between states through 
negotiations. It means the refusal 
to violate the territorial integrity 
of states, the refusal to export 
revolution and export counter- 
revolution. Finally, peaceful co- 
existence is economic rivalry of 



109 



states, agreements, trading rela- 
tions on the basis of mutual ad- 
vantage between states. 
Notice the refusal to export revolution 
and export counterrevolution. 

Thirteen days later the same speech 
was published again in the chief theo- 
retical magazine, Kommunist, here 
Suslov was made to say: 

Peaceful coexistence means 
. . . the refusal to violate the terri- 
torial integrity of states, the in- 
admissibility of the export of 
counterrevolution. . . . 
The reference to the refusal to export 
revolution had now been deleted, ap- 
parently at the last minute from galley 
proof or page proof; the key sentence in 
Kommunist is very widely spaced to 
make up for the deletion. 

Peaceful coexistence in the sphere of 
ideology has been repudiated by the 
Soviet leadership in many statements, 
directed principally at the Soviet popu- 
lation to make sure they do not get any 
wrong idea. That the idea, though not 
the precise words, of "peaceful co- 
existence" was used as a tactic in 
foreign policy, was made clear in the 
earlier and more candid days of the 
Soviet regime when Lenin said, in a 
letter to his representative at the Genoa 
Conference of 1922: 

. . . we, communists, have our 

own communist program [Third 

International]; nevertheless we 

consider it our duty as merchants 

to support [even if there is only 

1/10,000 chance] the pacifists in 

the other, i.e., bourgeois 

camp. ... It will be both biting 

and "amicable" and will help to 

demoralize the enemy. With such 

tactics we will win even if Genoa 

fails. 

As recently as early 1961, Chairman 

Khrushchev referred to the policy of 

peaceful coexistence as "a form of 

intensive economic, political and 

ideological struggle of the proletariat 

against the aggressive forces of im- 



perialism in the international arena." 
The current Program of the Communist 
Party uses similar language. 

Thus the fact that the considerable 
resources of scholarly and lay communi- 
cation at the disposal of the Soviet 
leaders are directed toward the celebra- 
tion of the importance of "Peaceful 
Coexistence" says nothing necessarily 
about the probable foreign policy of the 
Soviet Union. 

The term, as such, has been found in 
Soviet literature bearing as early a date 
as 1920. Though contemporary Soviet 
writing invariably describes the principle 
of peaceful coexistence as Leninist, by 
the way, the term does not seem to have 
been used by Lenin. It was Chicherin, 
People's Commissar for Foreign Affairs, 
who referred to the Peace Treaty with 
Estonia as the "first experiment in 
peaceful coexistence with bourgeois 
states." Twenty years later, as we know, 
the state of Estonia ceased to exist and 
it became unnecessary to coexist with 
her, except in the sense that the robin, 
in Don Marquis's old poem, coexisted 
with the worm it had swallowed. 

While peaceful coexistence was often 
mentioned by Stalin, especially during 
the period of the United Front in the 
thirties and the period of wartime col- 
laboration in the early forties, it is only 
since 1956 that the slogan has become 
central to Soviet pronouncements. At 
that time it took off from the Panch 
Sheela, the Five Principles, which had 
been proclaimed in the Sino-Indian pact 
of 1954 and expanded in the Bandung 
Declaration of 1955. Later the major 
share of the credit was ascribed more 
directly to Lenin. As a principle in 
international law, it has been treated in 
numerous Soviet monographs and arti- 
cles since 1956 and pressed vigorously 
by Soviet representatives at interna- 
tional meetings of governmental and 
nongovernmental organizations. 

To distinguish between the political 
and the legal purposes of the Soviet 
emphasis on "Peaceful Coexistence" 



110 



implies a distinction between law and 
policy that is not made by the Soviets, 
except for external consumption; but 
we can distinguish between general stra- 
tegic purposes and technical doctrinal 
purposes. 

The strategic uses of "Peaceful Co- 
existence" vary with the audience. Afro- 
Asian audiences in general are assured 
that the Soviet Union sides with them in 
their campaigns for the Panch Sheela 
and, more basically, that the Soviet 
Union as an important European power 
takes seriously a form of words that the 
Afro-Asians profess to take seriously. 
With other non-Soviet audiences, except 
for Communist Party members or 
sympathizers, the aim is to influence 
non-Soviet disarmament, to attract East- 
West trade, and to enlist support for 
various specific Soviet moves in foreign 
affairs from time to time. With commu- 
nist audiences, the declaration of ad- 
herence to the policy of peaceful co- 
existence is a taking of sides on one of 
the main issues between the Chinese and 
Soviet communist leadership, which 
may be defined as the issue whether the 
expansion of the communist system can 
be rapidly achieved without actions that 
increase the risk of worldwide nuclear 
war. Recently, before a Soviet audience, 
some Soviet international lawyers took 
pains to distinguish 

the concept of peaceful coexist- 
ence, as the fundamental principle 
of international law which is also 
the basis of the foreign policy of 
peace-loving states [from] . . . the 
concept of coexistence [note the 
absence of the adjective] of the 
two systems as an indication of 
the stage of history referred to by 
V.I. Lenin, a stage which is inevit- 
able by virtue of the fact that the 
socialist revolution does not tri- 
umph simultaneously in all coun- 
tries. 
The fact that all these various audiences 
eavesdrop on one another has compli- 
cated the task of Soviet propagandists, 



but they are assisted by the durable 
propensity of us all to hear what we 
wish to hear and close our ears to what 
we would rather not hear. 

For some of these purposes, the 
content of the principle has to be 
spelled out, though not in great detail. 
A minimum statement would include 
the Panch Sheela: these five points refer 
to respect for sovereignty, nonaggres- 
sion, nonintervention in the internal 
affairs of other states, respect for 
equality of states, and peaceful coexist- 
ence itself, which in Afro-Asian usage is 
one of the five points, but in Soviet 
usage embraces all the others. Under 
pressure from international diplomatic 
and legal questioning, some additional 
content, still at a high level of abstrac- 
tion, has been given to the principle of 
peaceful coexistence; it has been said to 
include, for example, in Dr. Lapenna's 
convenient summary: 

1. Coexistence is "a funda- 
mental principle of international 
law." 

2. Peace without threat or use 
of force; settling disputes by 
peaceful means; individual or col- 
lective measures, in accordance 
with the United Nations Charter, 
to prevent or suppress acts of 
aggression; prevention or suppres- 
sion of war propaganda; promo- 
tion of the implementation of 
general and complete disarma- 
ment. 

3. Cooperation in the field of 
economy, social and political 
questions, science and culture. 

4. Sovereignty and territorial 
integrity; the right of peoples and 
nations to self-determination: 
anticolonialism. 

5. Noninterference in the in- 
ternal affairs of other states. 



Ill 



6. Equality of states; represen- 
tation of states in international 
organizations in conformity with 
the interest of the three groups of 
states. This is a promoting of the 
Troika idea to the rank of a 
principle of coexistence. 

7. Fulfillment in good faith of 
international obligations arising 
from treaties and other sources of 
international law. 

On the whole, it is fair to say that 
the Soviet publicists have not shown 
themselves jealous for the purity of 
their principle; they have seemed willing 
provisionally to accept many of the 
formulations offered by others as com- 
ponents of the principle. The reason for 
this hospitality is, I think, the same as 
the reason for the failure hitherto to 
specify what Professor McWhinney calls 
concrete secondary principles, that is, 
principles sufficiently meaningful to be 
arguable. To make clear what I believe 
this reason to be, we should back up far 
enough to look at the position of the 
Soviet Union in the international legal 
community and at some of the other 
techniques advanced by the Soviet 
Union in the past to improve that 
position. 

The Soviet Union began under condi- 
tions that implicitly denied the validity 
of traditional international law as the 
regulating idea of the traditional system 
of nation-states. Upon coming into the 
international community the Soviet 
Union was very much in a minority. 
Even today, though it is stronger, and 
has several satellites and many friends in 
power and out of power throughout the 
world, the Soviet Union both feels itself 
to be in a minority still and finds it 
useful for certain purposes of morals 
and ideology to emphasize, at times, 
that it is beleaguered by a hostile 
majority. To the extent that the interna- 
tional community was a going concern, 
Soviet views were alien and Soviet 
policies were distrusted. Not only were 



the doctrines of international law in 
many respects disagreeable or hamper- 
ing from the Soviet point of view, but 
the processes by which international 
legal doctrine was made and applied 
seemed, under Soviet analysis, to be 
necessarily exclusive and anti-Soviet. 
The facts indeed lent some support to 
this opinion. 

In such a situation, Soviet interna- 
tional law theory, whatever its twists in 
accompaniment to the course of Soviet 
foreign relations, made use of a variety 
of techniques to depreciate the existing 
process of international norm-formation 
and to enlarge the role to be reserved 
for the Soviet Union in those processes. 
There was the time when international 
law was generally repudiated, later to be 
accepted during a period of transition 
admitted to be necessary before interna- 
tional law could be discarded along with 
the system of independent nation-states. 
There was the assertion that a state 
whose polity was based upon a new and 
juster social theory had the right and 
duty to repudiate those particular doc- 
trines of international law that offended 
that theory. There was the continued 
insistence upon the primacy of treaties 
as sources of international law, the 
belittling of the rule of custom, the 
stress upon the necessity of the consent 
of a state before that state could be 
bound by a rule. When the United 
Nations Charter was adopted, with its 
institutional arrangements allowing a 
very important role to the Soviet Union, 
and its text corresponding in many ways 
to the demands upon which Soviet 
representatives had insisted. Soviet pub- 
licists began to exalt what was called the 
international law of the Charter over 
what was called traditional international 
law. For some time it looked as though 
primary stress was to be laid by Soviet 
international law theorists upon the 
institution known throughout the world 
as "generally recognized principles of 
law," or "the general principles of law 
recognized by civilized nations." 



112 



While I have listed these techniques 
roughly in the chronological order of 
their appearance, it should be kept in 
mind that there was no neat sequence of 
use, abandonment, replacement. Many 
of them are alive today, though not 
flourishing. They all have been over- 
shadowed, even if not quite superseded, 
by the emphasis upon the principle of 
peaceful coexistence. What counts, for 
this purpose, is not that the principle 
shall mean anything special rather than 
anything else, or indeed that it shall 
mean anything at all. What counts is 
that something under the name of "the 
Principles of Peaceful Coexistence" 
should win recognition— without defini- 
tion, preferably— as lying at the heart of 
international law; that it should be 
acknowledged the world over that to 
define "the Principles of Peaceful Co- 
existence" is the most urgent task of 
contemporary international law; that it 
should be acknowledged that the 
process of defining them requires the 
participation and consent of the Soviet 
Union; and by implication, that any 
principle or doctrine of international 
law that has not been accepted by the 
Soviet Union as part of, or consistent 
with, "the Principles of Peaceful Co- 
existence" has to be rejected as being 
for that reason invalid. 

There, in my opinion, we have the 
chief significance of "the Principles of 
Peaceful Coexistence" in contemporary 
Soviet work on international law. There, 
too, we have the explanation for the 
hospitality of the Soviet publicists 
toward so many of the items furnished 
on provisional lists of principles of 
peaceful coexistence by Yugoslavia, 
Americans, Canadians, and others. They 
are hospitable because at the present 
stage of their campaign the content of 
"Peaceful Coexistence" does not matter 
for their main purpose. There will be 
arguments about the content, but those 
can expediently be postponed until a 
later stage when the centrality of the 
(undefined) "Principles" has been 



conceded by the rest of the world. To 
this end, many particular questions of 
content can be sacrificed for the time 
being if the sacrifice will purchase agree- 
ment to the procedural claim, to the 
essential idea that their notion of peace- 
ful coexistence is central to interna- 
tional law. At the Brussels meeting of 
the International Law Association a 
year ago, for instance, the Soviet delega- 
tion, led by the most eminent currently 
authoritative Soviet international law- 
yer, were willing to admit a good many 
topics to the list of issues discussable 
under the heading of "Principles of 
Peaceful Coexistence;" but when an 
attempt was made to change the name 
of the pertinent committee to drop the 
slogan of peaceful coexistence and bring 
the title into line with that used in the 
United Nations, the Soviet delegation 
quit work in the committee until the 
change of name was blocked. Their 
attachment to the name was not an 
attachment to the fact described by the 
name, or to the content they had been 
suggesting for the name, but a recogni- 
tion of the utility of the slogan in 
serving other goals than this one and of 
the energy that, having been invested in 
its dissemination in international law 
circles, would be wasted in part if it had 
to be transferred to a new set of words. 

In drawing this picture of the inter- 
national law uses of the Soviet emphasis 
upon "Peaceful Coexistence," I may 
have overrationalized the mental 
processes of Soviet lawyers, who may 
well not have planned it all at once. And 
I have no intention of asserting that the 
engine they have tried to build will roll 
along the planned route, or even that 
the route cannot change. The Yugoslavs 
and the Communist Chinese know how 
wide the swings can be. 

Such are the main features of Soviet 
work in international law as they seem 
to strike the observer today. Have we 
any warrant for expecting them to alter 
soon? In some directions we may be 
justified in supposing the changes in the 



113 



global situation of the Soviet regime to 
do their work in affecting Soviet inter- 
national law. For example, the strong 
emphasis placed by Soviet doctrine on 
territorial sovereignty may be affected 
by several contemporary developments: 
First, the Soviet Union is acquiring 
power, influence, and attendant respon- 
sibilities in areas not contiguous to the 
Soviet Union, and the map on which 
they, the Soviet leaders, plan their 
political moves, looks a little more like a 
globe than it did in Stalin's time. 
Second, trade and aid, while still minute 
by our standards, are beginning to play 
a more significant role than before in 
Soviet economy and in Soviet foreign 
policy. Third, the Soviet Union is be- 
coming more active in impinging upon 
other states in ways that are within the 
purview of international law, not least 
in their deployment of naval and osten- 
sibly civilian vessels. (When Admiral 
Mott, by the way, spoke of the recipro- 
cal interest in innocent passage, I was 
reminded of an old Russian proverb 
with a liquid setting and perhaps a naval 
application: "Don't spit in the well: you 
may want to drink from it later.") 

These factors are opposed, and per- 
haps still for a time will be outweighed, 
by the weight of history and training, 
the continued situation of the Soviet 
Union as a huge land power potentially 
threatened by action by sea and air, the 
continuing political advantage to be 
derived among nations of the Southern 
Hemisphere by espousing extreme con- 
cepts of sovereignty, the Soviet Union's 
perception of its minority status in most 
international fora, and the continued 
interest of the Soviet regime in restrict- 
ing the access of its population to 
outside influence and the access of 
outside influences to its population. 

We should not therefore be surprised 
to see inconsistencies, hitches, conflicts 
of emphasis. Proclamations closing large 
areas of ocean to foreign fisheries, or 
enclosing large bays, and advocacy of a 
wide margin to the territorial sea, may 



peacefully coexist with considerable so- 
phistication in the use of Soviet fishing 
trawlers for not necessarily innocent 
passage; attacks upon the legality of 
United States reconnaissance satellites 
may be made in the same breath, or 
speech, with assertions of the right of the 
Soviet Union to make military use of 
space. Efforts to achieve a special theo- 
retical position for legal relations among 
the states of the Soviet camp will be 
combined with bitter resistance to re- 
gional groupings over which they have 
no control; they are still uneasy with a 
horizontal system, no matter whether 
the several units of that system are 
single states or groups of states. The 
mixture will be spiced with that self- 
righteousness in which the Soviet au- 
thorities have had so much experience 
and defended by the enforced un- 
animity of the legal profession— unfortu- 
nately they don't have a Quincy Wright 
of their own— but it will bear some 
resemblance to the complex and many- 
shaded relationship that other great 
powers have toward international law. 
This is not, except by indirection, a 
class on American work in international 
law, and I shall not proffer detailed 
comment or advice upon the course we 
might take in reaction to, or considera- 
tion of, or disregard of, the Soviet work. 
My attitude toward desirable American 
policy is perhaps best expressed ob- 
liquely by a reference to the best 
defense ever given, as it seems to me, for 
Chairman Khrushchev's famous boast, 
"We will bury you." As you know, he 
has had many times to insist that the 
statement was meant only figuratively, 
that it was not meant to refer to 
particular individuals, that it was com- 
patible with peaceful coexistence, that 
it has been misunderstood. But the best 
answer on Khrushchev's behalf was 
made for him more than twenty years 
before Khrushchev's statement. In 
1936, at the tercentenary of the found- 
ing of Harvard College, President 
Conant moved that the meeting be 



114 



adjourned to the same day of the year 
2036. Ex-President Abbott Lawrence 
Lowell intervened with a comment be- 
ginning with the words with which I 
should like to close: 

Before putting that motion [of 
adjournment] I want to say a 



word in its favor. If I read history 
aright human institutions have 
rarely been killed while they re- 
tain vitality. They commit suicide 
or die from lack of vigor, and then 
the adversary comes and buries 
them. . . . 



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115 



RECENT TRENDS OF INTERNATIONAL LAW 



Nicholas deB. Katzenbach 



Before getting into the subject of 
recent trends, I want to say a few words 
about some of the basic philosophical 
problems of international law which I'm 
sure you have discussed. I wish to make 
sure that you and I are on the same 
wavelength. I don't ask you to accept 
my thoughts about this, but I do think 
you ought to know my ideas on this 
general subject so that you can under- 
stand better what I'm saying and what 
I'm trying to do. 

In the first place, as a professor of 
international law, I was never con- 
cerned, and I am not really concerned 
today, as to whether international law 
does, or does not, exist as "law." I've 
never seen much point in debating that 
subject. If I were to debate it, I would 
be happy to take either side of the 
question. I think it very easy to define 
law in such a way as to exclude interna- 
tional law entirely. I think it is very easy 
to define law in such a way as to include 
it. And I think that's not a subject we 
need to debate about because if I read 
naval regulations correctly, CNO has 
decided that question for us, since he 
has told you that in certain circum- 
stances you should abide by interna- 
tional law; therefore, I assume that he 
believes that it exists, and that we 
should assume here that it exists. 

What is clear, I think, is that states- 
men, very less frequently impartial 
judges, sometimes national judges, and 



others— including naval officers— invoke, 
in justification of something that they 
are doing, or in protest against some- 
thing somebody else is doing, rules of 
international law. The claim or assertion 
that they make may be generally 
accepted by others, or it may be vigor- 
ously disputed by others. The dispute 
may be as to the application of a 
familiar rule to a particular fact, or as to 
the relevancy of another conflicting 
rule. (Even in our own domestic law 
system, as Justice Cardoza once noted, 
rules of law generally travel in pairs and 
opposites.) Or the dispute may be even 
as to the rule itself, the way it is 
phrased, or what it is designed to do. 

If such a dispute exists I think we 
can assume that very rarely will it be 
decided as it would be decided within a 
domestic legal system by reference to an 
impartial body of judges. More likely 
it's going to be decided in a particular 
case by whoever has the power to make 
the decision stick— whoever can make 
good that claim, or make good that 
protest. To the extent that the rule and 
its application is not generally accepted 
by others, there's going to be some 
political cost involved in making the 
claim, and there may be the additional 
cost to the state making it, arising from 
the fact that it can scarcely protest in 
the future if others do the same thing. 

Now nobody would contend that 
that is a very satisfactory legal system, 



116 



or even that it works very well, But I 
think it would be hard to deny that 
there are a number of rules of interna- 
tional law which are normally and cus- 
tomarily adhered to by states in spite of 
variations and differences in formula- 
tion and application, and that these 
rules do, in fact, influence decisions, 
actions taken, and policies promulgated 
by various states and other participants 
in international political arenas. In this 
limited sense, at least, the existence of 
these rules, and their acceptance, does 
contribute significantly to order and to 
the structure of expectations within the 
international community. The rules 
which are most effective and most 
strictly adhered to are, of course, those 
in which mutual advantage is perceived 
in the existence of the rule and in the 
order which that rule gives. A good deal 
of the law of the sea, for example, 
survived for precisely this reason, and 
has survived for a long time. And those 
parts which are most in doubt— the 
three or six or two hundred-mile limits- 
are those in which at least some states 
have not perceived a mutual advantage 
in the rule from their viewpoint. 

Now the second point I would make 
by way of introduction is also quite an 
obvious one, and that is that any rule, 
no matter how accepted, may be 
breached by any state at any time. If a 
state believes that the immediate advan- 
tage to it of ignoring a generally 
accepted rule is greater than its interest 
in the rule itself— and it can get away 
with it— the rule breaks down. Usually 
these are situations of crisis and I think 
it's useful to remember that even in a 
developed domestic legal system, rules 
frequently break down in times of great 
stress and crisis. To say that this is a 
question of weak enforcement of inter- 
national law is, I think, to beg the entire 
problem. 

The third introductory point that I 
want to make is that any legal system is 
necessarily a part of a political system. 
It it unmitigated nonsense to talk, for 



example, about "world law" unless 
you're willing to talk about world gov- 
ernment at the same time, because 
you're not going to have a developed 
legal system in the international com- 
munity, as you would not in a domestic 
community, unless you have a devel- 
oped governmental system and political 
system at the same time. The legal 
system of any community is just as 
developed, no more and no less, as the 
political system. 

The final introductory point that I 
want to make is the very obvious 
connection between law and policy, and 
law and politics. Every rule of law, 
every rule of behavior, in any society, 
domestic or international, reflects a 
policy; it's designed to serve a policy by 
the person or people who formulate the 
rule. We see this very clearly, I think, in 
the domestic picture because, in fact, 
most of our law is made in the Congress 
and in the State Legislatures, although 
at times it isn't easy to get them to 
enact law. 

In the international community you 
don't have the kind of separation of 
powers that we have in the domestic 
community. You don't have a legislative 
branch to enact the laws; you don't 
have an executive branch to carry them 
out; you don't have a judiciary to rule 
with respect to disputes; and these 
functions are tied together so that under 
the guise of impartially applying a rule 
of international law, what you may be 
doing is formulating a little bit of 
international policy that from the view- 
point of the person saying it, would 
seem to be a sound policy for his 
particular government, and perhaps for 
the international community as he sees 
it or would like to see it. We can, 
therefore, see these rules shifting and 
changing with somewhat more un- 
certainty, somewhat more flexibility, in 
somewhat less of a developed system. It 
is helpful to think of this process in 
terms of efforts within international 
society by these various participants to 



117 



formulate what we would call in a more 
developed system a legislative policy— to 
formulate rules which they believe 
would usefully serve participants within 
the international community. Thus any 
discussion of recent trends of interna- 
tional law has to take account of the 
changed political structure of the world 
community, of the new problems, the 
new political groupings, which have 
come to pass in what is often a too 
rapidly changing, as well as a too 
dangerous world. 

Most of the international law doc- 
trine that we have— that you have been 
studying— is inherited from the 19th 
century. It developed throughout the 
last part of the 18th century, and it 
became a relatively developed system of 
rules in the 19th century. To under- 
stand how that set of rules came about 
and what the differences are today, and 
to understand trends, we ought to look 
at the political system which then pre- 
vailed and particularly its security 
aspects. Fundamentally any system of 
law is designed at heart to preserve 
order as well as to serve other policies 
within the community. It's an effort to 
create an orderly way of doing things, 
and an orderly way of doing things 
means, at a minimum, that you remove, 
as much as possible, violence or the 
threat of violence. These rules de- 
veloped as a system of law governing 
states within the international com- 
munity. They became a developed sys- 
tem as nation-states developed. 

Now what was the security system in 
which this operated and what were the 
essentials of that system? The security 
system was quite obviously the balance 
of power system which characterized 
international society and achieved its 
most developed form in the 19th cen- 
tury. The essentials of that system were 
that you had a group primarily of 
European states which were mutually 
suspicious and whose best security lay 
in a system of flexible alliances. That is, 
the best way of preserving peace within 



that system was to align yourselves with 
others. If one alliance became stronger 
than the other, there was a real risk of 
war, and the members of the weaker 
alliance could offer to a member of the 
stronger alliance the necessary incentive 
to move over into that alliance. A 
shifting series of alliances is what I mean 
by flexibility of alliance. Thus, any state 
within that system had to be willing to 
get up and dance with any other partner 
within it. And that, I think, is essential 
to understanding much of the legal 
doctrine that ve have inherited. 

Within the balance of power system 
war was not outlawed formally; it was 
legally nobody's business but the state 
making it. We got away from earlier 
concepts of rights and wrongs of war, 
and simply depended entirely upon this 
political syitem. 

There were other characteristics to it. 
If you are going to be willing to change 
partners, one of the things you can't 
afford to do is get involved in ideologi- 
cal disputes with other countries. You 
have got to take them as you find them, 
if you are going to join them, or if you 
may have to join them and switch from 
one alliance to another. And so you 
have a very strong rule in the 19th 
century of noninterference in the in- 
ternal affairs of other states; at least 
other strong states. In fact, states were 
defined in such a way as to have viable 
entities that were capable of preserving 
their own independence, and not be- 
coming pawns of someone else— a 
characteristic which is clearly not the 
case today. 

Now, in addition to that security 
system there existed throughout the 
European countries during the 19th 
century a common ideological basis, at 
least with respect to economics. You 
didn't have it with respect to politics. It 
was an age of revolution. But you had it 
with respect to economics. There was 
the dominance of laissez faire as a 
philosophy shared by virtually all of the 
participants. One of the conditions 



118 



which a state had to be able to attain to 
be a "state" was to preserve enough 
domestic order so that others could 
trade with it and do business with it. 
They had to share a variety of rules with 
the more developed countries which 
permitted foreign investment, at least in 
the sense of foreign trading. Only if 
they preserved a system of local law and 
order which was sophisticated enough 
to allow you to trade with them, could 
they really hope to maintain their inde- 
pendence. Within those areas of the 
world where those conditions were not 
possible to achieve, trade led to a 
considerable growth of colonialism in- 
herited from an even earlier day, and 
then a series of protectorates and man- 
dates. There was very little interference 
in the internal affairs of these countries 
aside from maintaining sufficient order 
to do business with them. And I would 
remind you just briefly in passing that 
the whole concept of the freedom of 
the seas which I will discuss a little bit 
later on, is very closely related to laissez 
fa ire philosophy— to the economic 
freedom which existed. 

Now the security system began to 
break down when the alliances became 
less flexible toward the end of the 19th 
century. I am inclined to think (I think 
a lot of historians would dispute me) 
that it broke down in large part because 
France and Germany had to be lined up 
on the opposite sides of the balance, 
and Alsace may have been one of the 
important reasons why it broke down. 
But be that as it may, it began to lose its 
flexibility— began to become impossible 
to shift— and as a result we had the first 
world war. 

In the interwar period there took 
place a series of rather vague efforts to 
find some new kind of security system- 
treaties, resort to courts— the Hague 
Tribunal, the League of Nations, and 
efforts of this kind, because the alliance 
system no longer could be counted 
upon. The complicated economic 
system was breaking down, too. 



Throughout that period there grew up a 
good deal of economic nationalism, 
changing somewhat the character of 
war, the character of military prepared- 
ness, and certainly changing the free 
economic system which had existed. 
There was an effort to replace this with, 
as I said, the League of Nations. It 
always has seemed to me a vague re- 
sponse to a real problem, an effort to 
create parliamentary government on an 
international basis. A lot of idealism was 
involved in it, and whatever its defects 
nobody came up with anything very 
much better. The effort, of course, of 
the French and the British throughout 
that period, was to recreate an alliance 
system, which was probably just as 
hopeless. 

Let me skip World War II. What kind 
of a system are we operating in today? 
What kind of a political system is 
international law operating within 
today? Clearly it is a very different 
system from the 19th century system 
and it's different in many important 
respects. First, it is no longer exclusively 
a state system, although states exist and 
states are still important participants. 
But what we really have today, more 
and more, are groupings of states- 
acting together— rather than single states 
each pursuing its own individual in- 
terest. 

After World War II, with the emer- 
gence of Russia as a major power, and 
the emergence of the Communist Part\ 
as a very important new element in 
international politics, we faced the 
effort by the Russians to dominate 
other nations through the device of the 
Communist Party. This technique of 
disciplining people, taking over a local 
government, and operating that govern- 
ment in conjunction with the domestic 
and foreign policy of a foreign state, 
was totally different from the express 
forms of domination of the 19th cen- 
tury. 

The response to the communist 
threat of the West, which had no 



119 



equivalent to the Communist Party and 
no desire to dominate internal affairs of 
other countries, was to create a group of 
states, acting together with respect to 
certain limited matters, as, for example, 
NATO. Although formally set up as a 
treaty arrangement of a group of sepa- 
rate states, actually NATO went far 
beyond that in its planning, in its 
attitude, and in the way in which it did 
business. We did not have, and don't 
have today, the complete separation of 
states within NATO that would have 
characterized the 19th century system. 

There were other than military insti- 
tutions that were created— other group- 
ings of states for various limited pur- 
poses. And so there was created within 
the Western world a kind of supra- 
national authority, within limited areas 
—not always strong, but viable and 
continuing and existing. 

In addition, there took place the 
emergence of the new nations of the 
world, made possible by this change in 
the political structure, or at least 
speeded along by this change. They have 
a rather different attitude than new 
states of the past. Nationalism has 
served, as it has always served, its 
function of being a unifying force. But 
there are the problems of a colonial 
heritage, some of the fears that go with 
it; and coming out of that, a tendency 
toward neutralism, fear of alliances, 
demands for social progress, for help, 
but always without interference in their 
internal affairs. 

And, of course, we have too, the 
United Nations. Perhaps I should have 
started with the United Nations, be- 
cause in the League it had a predecessor 
with, it seems to me, unclear ideas— or 
perhaps conflicting ideas-as to what it 
might do, and what it might accomplish 
within the society. Whatever the aspira- 
tion and the hope, it has become clear 
that there are very basic divisions within 
the world, and it has become clear that 
major powers can't rely upon the 
United Nations as any kind of a security 



system. It can serve, and does serve, 
other useful functions. It does, for 
example, improve communication. It 
certainly has served a very useful func- 
tion for the new nations who are heavily 
represented, particularly in the General 
Assembly, and who have an opportunity 
thus to make demands and to air prob- 
lems which would not otherwise be 
aired. But the possibility of the United 
Nations taking strong and vigorous 
action is limited to the relatively few 
situations where the interest of major 
powers, particularly the United States 
and Russia, are likely either to coincide, 
or, at least, not to conflict. 

I suggest that the real developments 
of international law are not in terms of 
a universal international law with rules 
equally applicable to all. More signifi- 
cant growth has been within these 
groupings of states. We have had a 
development of regionalism, and, more 
importantly, of functional approaches 
to shared problems. 

Now some development has been 
accomplished on a universal basis, but it 
has become more of a pragmatic ap- 
proach, less of a doctrinal one. We have, 
for example, on a universal basis, not 
done badly on meterological or health 
problems. Within smaller functional 
groupings we have, I think done quite 
well. 

I have already mentioned NATO in 
particular; there are other alliances with 
some similarity— the regional organiza- 
tions such as the Organization of Ameri- 
can States— all with some small elements 
at least of supranationalism, some small 
elements of acting together as an entity, 
of working together to solve problems. 
Far more dramatic has been the devel- 
opment of the Common Market. We 
have something very close, with distinct 
supranational characteristics, to the 
creation of a new federal state within 
Europe. This is a situation which would 
have been wholly impossible in the 19th 
century. No European state could have 
afforded to create those kinds of bonds 



120 



and ties. No state could have afforded 
to have delegated to other authorities, 
to supranational authorities, so much 
power over its own economy, over its 
own trade, and over many of the most 
important functions of government. In 
fact, I do not believe that any of the 
members of the Common Market, had it 
existed in the 19th century, could have 
met the traditional international law 
definition of what a state was. 

Now what has this meant, this 
change in the political structure, with 
respect to changes in legal doctrine? The 
one point I have given major emphasis 
to is that we really are somewhat less 
concerned today with finding universal 
rules which will be applicable to all 
states within the community. It seems 
to me the area of progress, the area of 
development, the area of excitement, is 
the area which says, How do we get 
together to solve a problem which is 
common to all of us? And this is the 
kind of activity that we have had 
occasionally on a universal basis, or 
close to a universal basis (I have men- 
tioned some of the examples), and on a 
military or security basis within other 
groupings. It exists with respect to 
economic development within still other 
groupings. 

There are also necessary changes as 
the result of all the technology and the 
change in politics. You have looked at 
the laws of war. It seems to me that 
there are obvious changes with respect 
to the law of war. This doesn't mean it 
is all to be thrown out the window. Not 
all of the inherited doctrine is inappli- 
cable in this new situation, but it has to 
be adjusted to it. And I think today that 
you would have far less confidence in 
those areas of the inherited rules of law 
with respect to warfare, particularly in 
terms of protection of private property, 
with respect to theft aspects, and even 
more particularly with respect to laws 
of neutrality (I am assuming here that 
this is not an atomic war, that it's a 
limited war of some kind). I think you 



would have an absence— an obvious 
absence— of powerful neutrals, and the 
power of the neutrals which supported 
the inherited doctrine up to World War I 
and partly through it; rules of neutrality 
are likely to go by the board in con- 
siderable measures. Some can survive. 
That is, in a limited war perhaps you 
can respect the territory of various 
other states. I think very little of the 
rights of neutrals on the high seas would 
be expected to survive, and you would 
have the sort of change that you already 
had in World War II with respect to the 
law of the sea in war. 

Other doctrinal rules have changed 
dramatically. We have foreign troops 
today stationed on the soil of other 
nations; some of our troops are abroad; 
the troops of others are here and in 
other countries. This was an unheard of 
proposition in peacetime within a 19th 
century system. And it has meant that 
there is a whole body of law which has 
grown up with respect to this peacetime 
stationing of troops, coming in on the 
invitation of a foreign government, and 
various rules of conduct in respect to 
them which have grown up and which I 
would expect to be developing. 

There was a lot of doctrine, some of 
it nonsense, about measures short of 
war, and a fair amount of freedom on 
the part of major powers to go into 
certain parts of the world to protect 
certain values which were shared by 
other states, if they could do so under 
circumstances which gave assurance that 
this was not an effort to conquer. A 
good deal of that, perhaps not all of it, 
has gone because of the change in the 
political system. 

In the law of the sea which you have 
studied, I am sure you have found that 
giving a forum for the first time to 
nonmaritime powers with respect to 
formulating rules of the sea, has led to 
considerable changes in those rules. The 
law of the sea was really a law created 
by the United Kingdom, but quite 
acceptable to all maritime powers, but 



121 



as we have gotten into larger multi- 
lateral arenas smaller nations have had a 
voice. Where these have not been mari- 
time nations, the three-mile limit faded 
before a desire to monopolize fish on 
the part of some small and poor coun- 
tries, who for the first time have had a 
voice and have used that voice (in what 
I think is a mistaken way) to promote 
their own interest by extending their 
control as a way of subsidizing their 
fishing industries. 

I have already mentioned changes in 
terms of the participants— that no longer 
do we just have states. We have a lot of 
other participants within the interna- 
tional community taking active roles and 
governed by rules of international law. 
And I take it that the problems of 
communist domination have raised very 
new questions for us in terms of internal 
subversion, and in terms of aiding and 
abetting revolution, not merely because 
you didn't like the existing government, 



but as a technique of foreign domination. 
These, then, are the trends that I see: 
More efforts to solve in groups of states 
certain functional problems, continuing 
with a heavy emphasis on security mea- 
sures, but also including and developing 
more and more efforts at economic 
development, and of creating in response 
to the demands of many countries better 
economies, more viable governments, 
and governments which are not domi- 
nated by any foreign power. I would see 
these attempts at problem-solving as a 
great growth of international law, less 
universalism but still a great growth 
among the nations marked by the growth 
of institutions that don't break apart. It 
is, and will be, a period of flux, of crisis, 
and considerable shaking down of rules— 
a time of shaking them up and shaking 
them down to the point that one would 
sometimes doubt if they still existed. But 
I would expect some survival in some 
form for most of these. 



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122 



NEW TRENDS IN INTERNATIONAL LAW: 
THE CHALLENGES OF THE ECOLOGICAL AGE 

Richard A. Falk 



I am glad to have this opportunity to 
talk about the future of international 
law, although I am mindful of the 
diffieulty of dealing adequately with 
this subject within the limits of available 
time. The most I can hope to do here is 
to outline the general way in which I see 
the picture and hope you will trust that 
evidence and reasoning exists to support 
the conclusions. One of the things about 
the future, which is important to appre- 
ciate is that ideological differences exist 
between different political systems at 
the present time, particularly the dif- 
ference between the Communist and the 
liberal-democratic political systems. 
This difference will, in my judgment, 
have a diminishing effect on the devel- 
opment of international law. I feel this 
is true not only because ideological 
perceptions of the world and of national 
interests seem to me to be of declining 



importance in the principal stales of the 
world, but more fundamentally because 
all nations are going to be faced in- 
creasingly with a common set of func- 
tional problems which will induce them 
to grasp the central role of cooperation 
in working out common responses to 
these problems. 

I^ven today differences in social, 
economic, technological, and geographi- 
cal position seem much more important 
than differences in idcologv in the 
international system. Disagreements 
about legal doctrine between the 
poorer, developing countries and the 
rich, developed countries are likely to 
become very much more prominent in 
the years immediately ahead. These 
disagreements are likely to assume a 
variety of forms. The poorer countries 
will seek to limit the economic advan- 
tages that might accrue to the richer 



123 



countries from unencumbered exploita- 
tion of their technological advantages. 

One finds this already in relation to 
current discussions over how the 
mineral wealth of the oceans shall he 
treated from a legal point of view. The 
more developed countries have tended 
to favor approaches allowing technologi- 
cally advanced countries to derive the 
principal benefits. The poorer countries 
have either favored allowing the interna- 
tional community as a whole to manage 
the process of exploiting ocean minerals 
and other resources, thereby deriving 
some of the revenue by having it divided 
among all countries of the world, or 
they have favored approaches allowing 
the extension of territorial sovereignty 
far to the seaward. This would give 
governments, regardless of their level of 
industrial development, much more of a 
role in authorizing and benefiting from 
exploitation of offshore resources, 
whether it be fishing resources or 
mineral resources. 

These kinds of conflicts will also be 
reflected in increasing demands from 
the African, Asian, and Latin American 
states for revisions of the structure of 
international trade and for what 
amounts to a system of progressive 
taxation in world society. Under such 
an arrangement richer, high GNP coun- 
tries will be expected, as a matter of 
obligation rather than as a matter of 
policy, to devote a fixed percentage of 
their national income to alleviate 
poverty and to facilitate economic 
development in the poorer countries. In 
this respect it is, I think, of some 
significance that the Teheran Declara- 
tion of Human Rights in 1968, which is 
the most recent statement of aspiration 
in international affairs, imposes such an 
obligation on richer, developing coun- 
tries, and that the revised Charter of the 
Organization of American States moves 
strongly in the direction of imposing 
upon the United Stales an obligation to 
provide a certain amount of money, free 
from any control on the part of the 



donor government, for the purposes of 
developing the poorer countries. 

These kinds of pressures for change 
in the governing legal structure of the 
world are quite predictable and, in all 
probability, could be handled reason- 
ably successfully within the existing 
structure of international society. What 
is somewhat doubtful is the ability of 
the existing structure to cope with the 
wider functional pressures that are 
building up in international society, 
pressures that continue to be only very 
dimly appreciated at the present time. 
In my judgment, these pressures arise 
from interconnected and cumulative 
threats that are beginning to imperil 
human survival and even to endanger 
the habitability of the planet as a whole. 
If regarded in the most optimistic pos- 
sible way, they are likely to produce a 
steady deterioration in the quality of 
national and international life unless 
very meaningful responses occur very 
shortly. Mankind is confronted, for the 
first time in human history, with a 
world-order crisis of planetary dimen- 
sions. Our future depends, first of all, 
on whether the governments of princi- 
pal national societies are able to or- 
ganize themselves to meet these new 
kinds of problems. 

The four interrelated and cumulative 
threats are as follows: first, the con- 
tinuing human tendency to resolve dis- 
putes among groups by recourse to 
violence— and here I mean to emphasize 
the central importance of the persis- 
tence and pervasiveness of war as a 
human institution for as far ahead as we 
can see. There is nothing about the 
structure of international law which 
seems to offer any realistic prospect of 
effectively moderating the role of war 
except insofar as governments exercise 
rational and prudent self-restraint in the 
pursuit of their objectives and in the 
interests of their own survival. The 
second threat arises out of the growth 
of world population at a very alarming 
rate, both in terms of areas subjected to 



124 



particular population pressures and in 
relation to the impact of the aggregate 
world population upon the carrying 
capacity of the earth's life support 
systems. There is now a growing hody 
of evidence, for instance, that when the 
world population reaches the threshold 
of six or seven billion, which it is 
expected to do in the last decade of the 
20th century, there will be great pres- 
sure on existing oxygen supplies: some 
marine biologists at the University of 
California have estimated that the maxi- 
mum oxygen-carrying capacity of the 
world is 5.8 billion. Whether they are 
correct or not is not really my point. 
My point is rather that the growing 
expectation of greater population places 
the whole basis of human existence on 
the world and national level in jeopardy. 
The third threat seems to me to derive 
from the prospect of shortages of criti- 
cal, renewable, and nonrenewable re- 
sources which will be beginning to be 
felt by the end of the century. This will 
be accentuated to the extent that the 
poorer countries are successful in 
achieving their goals of modernizing 
their own society, that is, by achieving 
industrial development of their own at a 
rapid rate. And, of course, the rising 
demands for production created by an 
increasing population— which seeks an 
ever-higher standard of living— is the 
dynamic underpinning of the dangers 
that seem to me to derive from an 
ever-growing spiral of demands upon a 
fixed stock of resources. Fourth and 
finally, the pressures of technology on a 
scale more and more global in dimen- 
sion are causing a wide variety of 
environmental problems of widening 
scope. Many of us are familiar with the 
fact that large bodies of water such as 
Lake Erie are virtually dead at the 
present lime as a consequence of long- 
sustained p o 1 1 u t i o n— long-sustained 
cumulative process of pollution that at 
no point was thought to imperil the 
Great Lakes in the manner it now 
obviously has imperiled them— a peril 



that turns out to be virtually irreversible 
once certain threshholds of deteriora- 
tion have been crossed. There is a 
growing body of evidence which sug- 
gests that the same dangers are mount- 
ing in relation to the oceans of the 
world; an ever-rising number of the 
most respected oceanographers are 
warning about the danger of irreversible 
catastrophes being caused by continuing 
present rales of pollution of the oceans. 
And this danger arises nol only from 
polluting the oceans so that fish and 
other living organisms are put in jeop- 
ardy, but also by contaminating the 
small marine micro-organisms under- 
lying the whole process of photo- 
synthesis responsible for the production 
of most of the worlds oxygen supply. 
There is already evidence, for instance, 
that the DDT concentrations in the 
ocean are impeding photosynthesis in a 
way that leads to decreases in the 
production of oxygen. 

These four kinds of threats seem very 
serious at the present time and will 
become, almost assuredly, worse with 
each passing year. The longer we defer 
any kind of acknowledgment of their 
existence and their importance, the 
more difficult it will be to take con- 
structive and rectifying action in a 
noneataslrophic way. At this point in 
my presentation, it may appear that my 
remarks have little, or nothing at all, to 
do with international law. 

International law is bound to be 
influenced by the endangered planet 
situation, in part because the basic legal 
doctrine and political institutions are 
incapable of coming to terms with these 
emerging threats. The basic allocation of 
legal authoritv in world society is based 
on two overriding principles. The first 
principle is based on ideas of ownership 
of real property— the principle that land 
and water within land entrusts national 
governments with virtually exclusive 
authority to govern their own territories 
in accordance with their own policies. 
The second principle is based on ideas 



125 



of freedom— the principle of freedom of 
the oceans and freedom of outer space 
which essentially supposes that all bene- 
ficial uses may he made without the 
need for a pattern of common regula- 
tion since one is dealing with an arena 
of such abundance that there is no need 
to allocate authority among govern- 
ments. Perhaps the simplest way to 
dramatize the ill-suitedness of these two 
principles is to borrow Garrett Hardin's 
illustration of the historical experience 
of overgrazing the English commons in 
the 18th and 19th centuries. 

In English country towns the pas- 
tureland was held in common among 
the farmers who resided in the towns, 
and they could graze their cattle as they 
saw fit on the common pastureland. The 
idea of a common pasture parallels the 
idea of freedom of the ocean. In the 
18th and 19th centuries, increases in the 
animal population on these pastures 
gradually came to place pressure on 
their carrying capacity. A condition of 
abundance was converted into one of 
scarcity. Also, on the commons, private 
ownership of the animals was combined 
with public ownership of the grazing 
land. The essential element in what 
Hardin calls the tragedy of the com- 
mons is a consequence of the combina- 
tion of private and public ownership 
becoming highly unstable and disruptive 
in a situation of growing scarcity. Even 
in conditions of scarcity each farmer 
had a greater incentive to increase the 
size of his own herd rather than to 
exercise self-restraint to promote an 
idea of limitation based on community 
welfare— an aggregate figure for the 
separate herds. It is not surprising that 
farmers continued to increase the size of 
their herds and that English pastureland 
was eventually destroyed. The logic 
leading up to this end is what has been 
called the tragedy of the commons: the 
drive by farmers for maximum revenue 
based on maximum herds collided with 
the public interest in maintaining 
limited herds so that the pastureland 



could sustain its aggregate animal popu- 
lation. 

International society is entering into 
a comparable phase in its development. 
We are living now in the early years of 
what 1 have labeled as the Ecological 
Age. The Torrey Canyon oil spill can be 
considered the Hiroshima of the Eco- 
logical Age and the Santa Barbara blow- 
outs the Nagasaki. These occurrences 
are the early warning signals, in effect, 
of the impending inability of the per- 
missive system by which the oceans are 
used to cope with the kinds of problems 
being created by modern technology. 
The Torrey Canyon incident was, in 
part, caused by the desire to cut op- 
erating costs by registering an unsea- 
worlhy oil tanker in a state with liberal 
registration standards. Such a sub- 
standard registry conflicted with the 
public interest in maintaining the purity 
of the oceans. Furthermore, in this 
setting, the results were aggravated by 
ecological ignorance— the oil pollution 
really caused less damage than did the 
efforts to disperse the oil through the 
use of chemical detergents. These deter- 
gents did a considerable amount of 
seemingly permanent damage to marine 
life in the area most immediately af- 
fected. 

The challenge is aggravated by the 
fact that international society has ex- 
perienced two major transformations in 
a very short historical interval: the first 
transformation was brought about by 
the development of nuclear weapons 
and the initiation of the nuclear age, 
which can be conveniently associated 
with the Hiroshima atomic explosion in 
1945. The second major transformation 
can be associated with the year 
1967— the time of the Torrey Canyon 
disaster. Before 1945 international 
society had several centuries to absorb 
changes in technology, and even the 
initiation of the nuclear age had been 
preceded by a considerable period of 
warning of difficulties to come. World 
War I and World War 11 provided strong 



126 



indications of the destructiveness of 
modern warfare and made many aware 
that war was an expensive and often 
self-destructive way of resolving central 
conflicts in international society. 

Therefore, if one looks at the long 
sweep of international history, it he- 
comes clear that from the period of 
1648 to 1914- from the Peace of West- 
phalia to the outhreak of World War 
I— the period which the slate system 
emerged and developed, there was a 
long buildup of attitudes and modes of 
coordinating behavior which seemed to 
correspond to the basic requirements of 
a tolerable social and political existence. 
And in that long prenuclear period, even 
the institution of war was not, by and 
large, an overly costly and destructive 
way of resolving conflicts and providing 
some method of change among con- 
tending political forces within interna- 
tional society. 

The basic allocation of authority 
between territorial sovereignty and free- 
dom of use, community use, seemed to 
work out quite well. Most events were 
relatively local and could be territorially 
confined. The oceans were sufficiently 
abundant to accommodate the use of 
all. World War 1 underscored the dangers 
of uncontrolled warfare as an instru- 
ment of national discretion. The legal 
efforts since World War I have basically 
been an attempt to both moderate and 
prohibit the recourse to war under 
conditions where it is increasingly 
costly. As indicated at the outset, I am 
very skeptical about the significance of 
these legal efforts to eliminate war or 
even to alter greatly the role of war in 
international society. 

The evolution of nuclear weapons 
carried further the intensification of 
weapons of destruction and made very 
plain to all who were rational that 
catastrophic consequences would follow 
from large-scale nuclear warfare. In con- 
trast to the issues of the nuclear age, the 
problems emerging in relation to the 
Ecological Age are not yet understood 



as presenting basic challenges to the 
ways in which governments handle their 
affairs and coordinate their activities. 
The problem is, first of all, that the 
oceans are insufficient to satisfy all 
demands, that is, the tragedy of the 
commons problem being played out on 
and beneath the high seas. There is also 
the related problem of the nonlocalness 
of domestic affairs as, increasingly, 
events and policies enacted with terri- 
tory have a bearing on the welfare of 
the world. If we take at all seriously the 
view, and I think we should, that the 
world has a limited carrying capacity in 
terms of world population, then what 
different national governments do with 
respect to population policy is very 
important to the welfare of all our 
national societies. It is also of very great 
importance what governments do and 
do not do on their territory with respect 
to nuclear testing or contamination of 
the atmosphere through radioactive ex- 
plosions. The impacts of such a matter 
are obviously not confined to the terri- 
tory of the slate making the decision to 
test these weapons, regardless of the 
locus of the event. 

One critical development is that the 
poorer parts of the world are becoming 
even more crowded. Most of these 
increases in population have two charac- 
teristics. I'irsl, they arc concentrated in 
the poorer countries in Asia, Africa, and 
Latin America; and second, these in- 
creases are concentrated in cities— most 
of the net increase in world population 
between now and the year 2000 will be 
reflected in the growth of urban popula- 
tion. Cities in conditions of poverty are 
the greatest source of world disease, and 
there are growing dangers of epidemics. 
Unsanitary urban conditions are likely 
to become even more dangerous in the 
decades ahead. We know that modern 
medicine has practically no defense 
against these outbreaks of contagious 
disease. Kor instance, the Asian flu thai 
has swept around the world in recent 
years has not been dangerous to very 



127 



many people. However, there is no 
necessary reason, medical or genetic, 
why the flu has heen relatively benign in 
the last few years. Epidemiologists pre- 
dict that within the next few decades 
there will he a lethal strain of virus that 
will spread throughout the world. Many 
of these developments point in the same 
direction, namely, that one can no 
longer expect the welfare of any part of 
the world to he upheld by even the 
most enlightened of national govern- 
ments. Imprudent governments may 
endanger the welfare of mankind by 
acts undertaken within their territory. 
The obsolescence of the state system 
is obvious also in relation to the oceans. 
One serious problem is the impact of 
hard insecticides on the quality of the 
oceans. It is evident that national policy 
and priorities bearing on choices such as 
whether to make agricultural produc- 
tion more costly or less successful may 
have a considerable ecological signifi- 
cance. Such choices by principal govern- 
ments might well determine whether the 
oceans can sustain the delicate ecologi- 
cal balance. A decision reached by a 
government as to whether or not lo 
prohibit DDT is not only of national 
significance but, increasingly as well, of 
world significance. Thus, in terms of 
thinking about the capacity of the 
international legal order to cope with 
the problems of the future, we are 
confronted with a very dangerous situa- 
tion in which the basic attitudes of 
self-reliance that have guided national 
governments for several centuries seem 
inadequate to cope with the emerging 
problems of an endangered planet. 
These basic attitudes have grown up in a 
world situation in which separate states 
were essentially meaningful units of 
political life. In early times the ideals of 
national sovereignly with respect to 
national territory really did represent a 
fairly rational allocation of govern- 
mental authority, and governments 
could safeguard the welfare of their own 
societies by adopting more or less 



enlightened policies and by being vigi- 
lant about the protection of their inde- 
pendence and territorial integrity. 

In the present setting then, if my 
general interpretation is generally cor- 
rect, no matter how enlightened na- 
tional governments are with respect to 
these four areas of threat, nothing these 
governments do alone is capable of 
assuring national welfare and of guaran- 
teeing physical survival over any long- 
term period. Similarly, competition 
among states using the oceans may 
jeopardize common interests in main- 
taining and developing this extraordi- 
nary resource of mankind. A great deal 
of evidence is beginning to be gathered 
that demonstrates the limited ability of 
present institutions to cope with the 
kinds of problems that are characteristic 
of this early phase of the Ecological 
Age. 

The most dramatic inference from 
my presentation is that a world of 
sovereign states with traditions of com- 
petitive rivalry is doomed to extinction. 
Such an inference may appear to be 
simplistic or apocalyptic, but it is the 
inevitable outcome of the analysis. The 
challenges of the Ecological Age add up 
to an adaptive challenge, which goes to 
the roots of human existence. The social 
and political institutions and supportive 
values we have an; not, at the present 
time, capable of meeting this challenge. 

At the present, our political agenda is 
badly outdated and obsolescent. Our 
political agenda and, therefore, the 
world-order problems that we try to 
deal with have been exclusively defined 
by the problems of man in society, of 
men in different societies having differ- 
ent ends, human groups in collectivities 
competing and conflicting with one 
another, and, under certain circum- 
stances of perceived interest, co- 
operating with one another. This politi- 
cal focus assumes that it is reasonable to 
take for granted the environment within 
which society and social and political 
affairs are conducted. So long as the 



128 



relations of men and nature can be- 
taken for granted, it follows that human 
society can expect to experience indefi- 
nite expansion. The whole commitment 
to increasing the gross national product 
at the national and world level every 
year is an expression of belief in the 
essential limitlessness of mans existence 
on earth. The force of my argument is 
that we need to plan the institutional 
arrangements, the norms, and pro- 
cedures for conducting human affairs 
within a limited environment. We need 
to accept, as best we can, the finiteness 
of man as a creature of the world and 
the finiteness of man's environment. A 
recently published book, Agenda for the 
Nation, published by the Brookings 
Institution to guide the transition from 
the Johnson administration to the 
Nixon administration, illustrates how 
out of step our most influential com- 
mentators are with this new order of 
world problems. This book attempts to 
cover all the issues that should be on the 
agenda of the new administration. None 
of the articles is devoted to any aspect 
with which we have been concerned. 
The ecological hazards are, in other 
words, not part of the spectrum of 
political relevance that is perceived by 
our leading policymakers and decision- 
makers. Part of this crisis of adaption is 
revealed by a failure of awareness, a 
failure reflected in the unwillingness to 
create a new agenda of political action, 
an agenda appropriate for an en- 
dangered planet. 

In contrast to this sense of concern, 
there are some hopeful signs. For in- 
stance, P resident Nixon's address of 
1969 on population policy displayed an 
unprecedented awareness of the politi- 
cal importance for the world and for the 
United Slates of curtailing the con- 
tinuing population expansion expected 
by the end of the century. Patrick 
Moynihan in a speech to the NATO 
Council on 21 October 1969 on the 
creation of a Committee on the Chal- 
lenges of Modern Society acknowledged 



the emerging ecological crisis as being 
the overshadowing issue of our times. 
Moynihans specific assignment was to 
make the case for widening the role of 
NATO to include environmental prob- 
lems. There is, thus, evidence that the 
U.S. Government is becoming aware of 
the importance of ecological challenges 
to national well-being. Hut it is essential 
that a comparable awareness develop in 
other major societies of the world. The 
character of the problem is one that 
requires a coordination of effort among 
sovereign states. Such coordination can 
only take place if a common sense of 
the ecological crisis forms in different 
parts of the world during the same 
general historical lime. In this connec- 
tion, one of the most important side 
benefits of the Apollo mission has been 
to present the world with visual images 
of the unity of the earth and, therefore, 
to foster recognition of the world as a 
reality of its own. This presentation of 
unity as the dominant image of global 
realitv corresponds closely to the re- 
quiremenls for coordination of effort 
on a functional level. Unless political 
perceptions begin to envision the world 
in terms of its functional unity, in the 
same way that one sees the world from 
outer space, the prospects of evolving 
the kinds of approaches needed to deal 
with these common problems facing 
mankind seem virtually nil. 

My own feeling about the present 
situation is that the first urgent task 
that follows from the acceptance of an 
endangered planet argument is to revise 
the political agenda by putting this new 
ecological category of problems into 
sufficient focus so that government offi- 
cials begin to understand that their own 
performance depends on developing re- 
sponses to these challenges. In this vein, 
the most urgent tasks before interna- 
tional lawyers, in my judgment, are to 
try to clarify the governing standards 
and functional institutions that might 
be appropriate for an endangered planet 
and to direct an increasing amount of 



129 



attention tc trying to show, for in- 
stance, that matters of world population 
can no longer be entrusted exclusively 
or indefinitely to the relative degree of 
enlightenment of different national 
governments. We need, instead, a com- 
mon world policy relied ing differences 
in ideology, culture, religion, and ethical 
values. And this common policy must 
be evolved relatively rapidly for the 
benefit of all mankind. The demonstra- 
tion of these functional pressures will 
itself help us to develop an awareness 
which may arouse constructive re- 
sponses and will help governments to 
see that an increasing percentage of the 
really serious problems facing them can- 
not be dealt with by reliance in a 
sovereignty-centered, competitive sys- 
tem of world society. We need to work 
toward a much more cooperative set of 
functional regimes— structures able to 
work cooperatively and to deal with 
common interests in a way which will 
protect the interests of all members of 
the international community. Voluntary 
action on behalf of the world interest is 
not enough because of the contradic- 
tory tensions between egocentric and 
community values— the tensions thai 
produce the tragedy of the commons. It 
is not enough to point out that en- 



lightenment is necessary for all; differ- 
ent states have different interests and, 
therefore, different sets of priorities. In 
regard to these ecological problems, the 
interests of the less developed countries 
in maximizing development lead them 
in a direction opposite to that taken by 
the more developed countries that do 
not have to operate under the same kind 
of domestic pressure. Thus, one of the 
most important adjustments to the cur- 
rent international setting would involve 
the recognition that the real differences 
in national priorities result from dif- 
ferences in national position, and that 
differences need to be accommodated in 
new legal doctrine that purports to work 
lor the entire community ol stales, and in 
the design ol institutions appropriate to 
deal with these emerging ecological chal- 
lenges. 

The final point I wish to make is that 
the traditional ideas of citizenship and 
loyalty need to be reconsidered in light of 
the imperatives of the Ecological Age. In 
particular, wc need to make people more 
sensitive to the increasing dependence of 
all peoples on the exercise of a certain 
kind of global sanity. All society is now 
so interdependent that it is no longer 
rationally possible to contemplate going 
it alone in the international system. 



f 



130 



POLITICAL FACTORS IN THE 



FORMULATION OF STRATEGY 



Harold D. Lasswell 



I am going to take the liberty of 
analyzing the topic with which I am 
dealing in a manner that may be a little 
more comprehensive than perhaps was 
originally intended. It will be necessary 
to give rather extended consideration to 
the term "political," since the word is 
ordinarily used in many different ways. 
Over the term "strategy" it is not 
necessary for me to tarry. I assume that 
we use the word as a convenient way of 
talking about a basic pattern for em- 
ploying instruments of power. It is 
assumed that these power instruments 
are utilized for the purpose of maxi- 
mizing the degree to which the funda- 
mental values of the body politic are 
realized. Hence, any strategy includes 
objectives and courses of action under 
various contingencies. I suppose it is 
obvious that a strategy of sea power 
relates this instrument to all other in- 
struments of total strategy; or, to ex- 
press it another way, to total policy. 

For many purposes it is convenient 
to classify the instruments of power 
according to the distinctive character- 
istics of the means employed. Let us 
begin by saying that strategy uses arms, 
goods, deals, and words. Perhaps you 
think these are undignified ways of 
talking about the four major divisions 
into which strategy is often separated: 
military strategy, economic strategy, 
diplomatic strategy, and ideological 
strategy. 



It is also useful for some purposes to 
classify strategy according to the dis- 
tinctive effect which a given instrument 
is capable of achieving in times of active 
crisis. From this perspective we may 
speak of destruction (or protection 
from destruction) as the distinctive 
effect of military strategy; of scarcity 
(or abundance) as the effect of eco- 
nomic strategy; of the disunity of 
leaders (or unity) as the distinctive 
result of diplomatic strategy; and of 
disunity of masses (or unity) as the 
distinguishing effect of ideological 
strategy. 

Suppose we make a small table of 
these terms for ready reference pur- 
poses: 



Strategy 

Military 
Economic 
Diplomatic 
Ideological 



Distinctive Means 

Arms 
Goods 
Deals 
Words 



Distinctive Effects 

Destruction (protection) 
Scarcity (abundance) 
Disunity of leaders (unit\ ) 
Disunity of masses (unity) 

There is no general agreement on the 
terms appearing in this table, although 
the categories are quite well-known. It is 
not important to insist upon the labels, 
if we understand one another. 



131 



I believe it is evident that the first 
two (arms and goods) are alike in 
putting the emphasis upon capabilities, 
and that the last two (the agreements 
made or negotiated among leaders, and 
the words addressed to large audiences) 
put the emphasis upon intentions. How- 
ever, no instrument is limited to its 
distinctive effect. It invariably has ef- 
fects of every kind, in varying degree; in 
war and in peace. Furthermore, all the 
organizations which are primarily 
specialized upon any one of the means 
must make use of all means in varying 
degree. Obvious as this may appear to 
be, it is nevertheless worth repeating, 
since it is of the utmost importance to 
catch hold of the contextual principle. 

Another fundamental principle, 
besides wholeness (contextuality) is the 
principle of maximization of all values 
sought by total policy. This basic postu- 
late of strategy is continually being 
revived in new words; and the revival, 
by renewal of emphasis, often accom- 
plishes a useful purpose. To choose a 
recent example: The principle of maxi- 
mization is often the point of the 
modern slogan, "psychological war- 
fare." What is being stressed is the 
importance of achieving effects as eco- 
nomically as possible— by measures 
short of total war, for instance; and by 
the timing of all actions with the 
psychological state of the opponent 
always in mind. Hence, it turns out that 
the general principle of maximization— 
which is a fundamental principle of all 
strategy— is being reaffirmed in different 
terms. The slogan "political warfare" 
often performs precisely the same func- 
tion by stressing what can be done to 
gain the ends of policy by diplomatic 
arrangement (with those in authority, or 
disaffected leaders, for example). Such 
considerations make a difference 
wherever strategy is conducted on be- 
half of goal values which do not include 
war itself as a positive value. 

In the available time I propose to 
limit the scope of the present analysis 



by taking the "political" factor in the 
formulation of strategy to mean: first, 
considering the intentions of leaders and 
masses; second, considering the poten- 
tial impact of any instrument of policy 
upon these intentions. In terms of our 
table, I'm concentrating upon disuniting 
(or uniting) leaders and masses; and I 
am considering the impact of each of 
the instruments of power, not only of 
diplomacy and ideology. 

In fact, my discussion will be nar- 
rowed much further. Because of the 
fundamental importance of relating the 
objectives of any special sphere of 
strategy to the goal values which are 
sought by the body politic for whom 
the strategy is formulated, I shall devote 
most of my time to the problem of 
objectives. 

The selection of objectives is enor- 
mously complicated in a democratic 
setup like ours by the ambiguity of the 
framework in which the strategist is 
compelled to operate. In this country 
there is always much ambiguity about 
long— and middle-range-policies. Strictly 
speaking, no one is authorized to tie the 
hands of future generations of Ameri- 
cans. This applies to successive Con- 
gresses or Presidents. In addition to our 
formalities, our pattern of thinking in- 
cludes the expectation on the part of 
our policy makers that national goals 
may be differently interpreted through 
time. Hence, no one arrogates to himself 
the last word on the goal values of the 
American people— and gets away with it. 

Where does this leave the strategist 
who is responsible for any aspect of 
total American strategy? To say that it 
"leaves him up in the air" doesn't help 
us very much. And even though this is 
true to some extent, the strategist need 
not be nearly as far up in the air as 
might appear from what I've just said. It 
is possible to obtain some guidance. 
First, there is a degree of consensus 
about the goal values of American life, 
and also about the translation of these 
values into institutional terms. And, 



132 



second, it is possible to estimate the 
way in which policy objectives will be 
interpreted under various future contin- 
gencies. Both these operations are essen- 
tial in estimating basic political factors 
in strategy. 

Let us consider for a moment the 
ideal values of the American tradition. 
Each of us would express these basic 
goals in somewhat different words. But 
most of us would recognize that the 
words that I'm going to use are about 
equivalent to his own vocabulary prefer- 
ences. The ideal preferences of the 
American tradition are for the realiza- 
tion of human dignity in theory and in 
fact. These words mean that we favor 
the achievement of an American com- 
monwealth in which values are shared 
on the basis of individual merit, rather 
than on the basis of the privileged status 
of a family group into which one 
happens to be born. 

Let us spell this out more concretely 
in terms of a fundamental way of 
thinking about the social process. This 
notion of social process, by the way, is a 
handy intellectual gadget for examining 
a great many problems connected with 
strategy. A social process gets under 
way whenever human beings affect one 
another. Thus, we have a social process 
today on a global scale; we have it on a 
bipolar, regional, national, and local 
scale. Whatever the social process is that 
we are undertaking to explore, it is 
convenient to talk about it in some such 
general terms as these: "People pursuing 
values through institutions using re- 
sources. " This term "values" refers to 
what people want; and the word "insti- 
tution" means the patterns by which 
values are shaped and shared in concrete 
circumstances. 

Let us apply this by making use of 
eight words to talk about the values in 
any social process that we want to 
describe. I'm going to use eight words 
for values: 

Power, or decision making, a value 
that is shaped and shared through the 



institutions called government, politi- 
cal parties, pressure groups, and the 
like. 

The wealth value is shaped and 
shared through the institutions special- 
ized to production and consumption; 
more specifically, the corporations, 
trade unions, and so on. 

Another value is respect which in- 
cludes such activities as the giving of 
honors or of stigma. It includes the 
discriminations and the distinctions in a 
community. 

Well-being is the value of physical 
and psychological health. The institu- 
tions specialized to it provide medical 
care, seek to prevent accidents, and so 
on through a vast network of activity. 

Enlightenment means access to facts 
and opinions upon the basis of which 
rational judgments can be made on 
important questions. The institutions 
are the agencies of civic instruction and 
public information. 

A further value is skill, the maturing 
of latent talent into socially acceptable 
expression. Distinctive institutions are 
the organizations which concern them- 
selves with levels of technical compe- 
tence. 

Another convenient value category is 
affection. Here we are talking about 
congenial personal relationships— family, 
friendship cliques, and so on. 

Last in this list of eight is rectitude. 
We are talking about institutional pat- 
terns which specify standards of right 
and wrong and apply them. 

Now let us look at the goal values of 
the American commonwealth in rela- 
tionship to this statement about social 
process. Having the general ideal of 
realizing human dignity in theory and in 
fact, we are in favor of moving in the 
direction of a commonwealth in which 
all values are very generally participated 
in, as distinct from a community in 
which all values are concentrated in a 
relatively few hands. What this means is 
that in terms of power we endorse a 
decision-making process in which there 



133 



is democratic participation, as distinct 
from despotic dictation by a few. 

In terms of wealth, we think of rising 
standards of living throughout the com- 
munity, as distinct from situations in 
which the enjoyment of economic bene- 
fits is highly concentrated in very few 
hands. 

In terms of human respect, we are 
against social castes. 

In terms of well-being, we are in 
favor of high levels of physical and 
psychic health throughout the common- 
wealth. 

So far as enlightenment is concerned, 
we are in favor of universal civic instruc- 
tion and freedom of the press. 

In terms of affection, we are in favor 
of human relationships in which there is 
opportunity for friendly and loyal 
human relationships to be maintained. 

Then, in terms of rectitude, we want 
to attain a universal sense of individual 
responsibility for contributing to human 
dignity. 

This is an over-simplified way of 
characterizing the sort of social process 
toward which we want to move, accord- 
ing to our ideal objectives. 

Well, let's stand back from this. What 
are some of the implications for the 
development of strategies? One point is 
that our decision makers are multiple- 
valued, rather than single-valued; and, 
especially, they are not centered on 
power. If you compare the decision 
makers in top official and unofficial 
positions in the United States with 
those in Nazi Germany in its heyday, or 
within the Soviet Union at present, 
you'll be struck by the difference. Nazis 
and communists are intensely focussed 
on power. 

For example: Very often American 
decision makers are emotionally upset 
when they listen to a situation being 
analyzed in strictly "power" terms. (I'm 
even referring to some specialists in the 
Armed Forces, as well as to decision 
makers who represent top civilian 
groups in the United States). There are 



frequent evidences of moral shock when 
an analysis is stringently carried through 
in power terms. The same attitude is 
reflected in a different way in a crop of 
embittered "baby Machiavellis" when 
people are trying to transform them- 
selves into individuals who are hard- 
boiled about power. 

You notice also a strange zigzag, in 
which persons who at one moment are 
insistent upon the consideration of 
many values besides power, engage at 
the next moment in most ruthless 
power politics. This type of zigzag 
reaction expresses lack of ease in dealing 
with the power value, a lack of ease 
which comes from our "multi-valued" 
and "open" society. 

This reaction also gives the United 
States a singular reputation for hy- 
pocrisy, thanks to the difficulties that 
arise in squaring many of our moralistic 
formulations with many of our power 
necessities. Now this reputation for 
hypocrisy was also a reputation which 
Victorian England enjoyed. To some 
extent, of course, it is the prerogative of 
all powerful units in the world to be 
regarded as hypocritical by those who 
are weaker, and in this sense we inherit 
England's position. The United States 
may have to get accustomed to being 
regarded as a nation of hypocrites. 

A second implication of goal values 
for the choice of strategical objectives is 
this: we aim at national security by 
international law and organization 
rather than by world conquest or world 
empire. 

A third point: We're not politically 
organized to plan and execute a so- 
called "preventive war." This is partly 
because the idea is repugnant, and 
partly a result of our unwillingness to 
concentrate sufficient authority and 
control. 

A fourth point: We desire to change 
the enemy's effective intentions by per- 
suasion, if possible, rather by destroying 
his or our capabilities. This comes from 
our strong reliance on methods of 



134 



bargaining and persuasion— bargaining in 
the sense of deals with leaders; per- 
suasion in the handling of propaganda, 
advertising, and other mass- directed 
forms of communication. 

Fifth in this particular list: we have 
little confidence in force as an instru- 
ment of policy save as a means of 
nullifying hostile force and of keeping 
the channels open for persuasion and 
for peaceful internal evolution. 

Next, our fundamental goal values 
are of consequence when we undertake 
to formulate in advance the end results 
of the present crisis (end results to be 
obtained, be it remembered, by mea- 
sures short of total or limited war, if 
possible). 

What are the minimum objectives of 
basic American policy in the present 
crisis? I think we can be fairly definite 
about the minimum objectives. We want 
to bring into the effective control of the 
Soviet Union (and elsewhere) policy 
makers who accept inspection and con- 
trol by the United Nations of arms, and 
agree to arms reduction and limitation. 

What are our maximum objectives? 
Well, one hypothesis about our maxi- 
mum objectives— not to be taken seri- 
ously, for I think it is highly im- 
probable—is this: to impose detailed 
United States institutions on the Soviet 
world. That is to say, to reproduce as 
many of our specialized institutions 
concerned with each value as possible. 

It is of the greatest consequence for 
strategic thinking to arrive at workable 
estimates lying somewhere between the 
minimum I have specified (which is 
pretty clear) and the ceiling I have 
mentioned. 

Next, in this list of implications, we 
prefer a minimum use of coercion 
against Allies and neutrals. 

Next, I think there are as yet un- 
realized implications for the positive 
objectives to be sought during the next 
several years. It is notorious, isn't it, at 
least among analysts of American 
policy, that so far our policy formula- 



tions have been primarily negative. We 
have relied in public (and frequently in 
private) on formulating basic objectives 
in terms of hostility to somebody else- 
somebody's leadership, somebody's 
institutional details. Problem: do we 
have any positive objectives which can 
be made potentially clarifying and 
stimulating to our own people and to 
the world as a whole? I think the answer 
is "yes," and I would forecast, without 
stopping to develop the point, that in 
the years ahead we are likely to discover 
that we are the ones who are the most 
impatient with a nonindustrialized 
world, and that we are the ones who 
most want to take the initiative and 
leadership in working closely with the 
leaders and peoples of all countries in 
order to develop worldwide industriali- 
zation; and that we propose to foster 
worldwide industrialization with a maxi- 
mum of freedom and a minimum of 
sacrifice of the values connected with 
human dignity. To phrase it one way, 
we are for "industry and democracy" 
versus "industry and despotism." Our 
aim is to cooperate in realizing a com- 
monwealth of free men in an industrial 
world. The purpose is to use modern 
science and technology in order to 
maximize the scope of human choice. I 
refer to this in passing to indicate the 
problems and solutions that appear 
when you explore the fundamental stra- 
tegic objectives of this nation. 

Note that in formulating strategy for 
a despotism the strategists are also in a 
quandry. People who suffer the am- 
biguities of popular government fre- 
quently forget the ambiguities of a 
dictatorial regime. This is not only 
because the dictators change their 
"line," if not their "spots," but because 
the dictators change their key per- 
sonnel, so that you get a considerable 
readjustment by selective attrition. So 
at any given moment the official has the 
serious problem of deciding just how 
long a given perspective will be safe to 
play with. Hence, officials of despotisms 



135 



become rather adroit in devising tech- 
niques for the evasion of responsibility, 
thus developing a kind of creeping 
paralysis in the formulation of middle- 
and long-range programs. 

Of course, in thinking about our 
objectives, political factors must be cal- 
culated that go beyond the influences at 
work in this country. We must take into 
account the power factors moulding the 
policies of present and potential allies. 

There are special problems connected 
with the liberation and restoration of 
allies who are overrun. 

There are thorny questions to be 
disposed of in adjusting our immediate 
and long-range objectives to programs of 
cooperation with regimes having little 
popular support. Here we meet the 
danger with which we have become well 
acquainted in recent times, of weak- 
ening the internal unity of the United 
States by close cooperation with 
regimes that have no basis of popular 
support. Also, there is the danger of 
weakening our appeal in the inter- 
mediate areas— and, ultimately, to 
peoples of the Soviet orbit— by uphold- 
ing a ruling group with whom we can 
make excellent deals, but whose masses 
may be alienated in time of crisis by 
these arrangements. 

Again, we must evaluate the helpful- 
ness of regimes with a great deal of 
popular support but neutralist in orien- 
tation. Perhaps their neutralism comes 
from fear of internal disunity if their 
policies are more positive, perhaps 
through fear of being the theater of 
active warfare. In any case, the strategic 
problem is to estimate the policies open 
to us for increasing our mutual identi- 
fication with common objectives. And, 
of course, we must evaluate the likeli- 
hood that the United States public will 
show patience and consideration toward 
other powers. 

Turning now to another political 
problem involved in the formulation of 
strategy: the scale and timing of prepa- 
rations. Let's assume that the strategist 



has arrived at an estimate of the magni- 
tude of the enemy threat, and of the 
efforts needed to meet the threat. 
Assume further that a high level of 
continued mobilization presents novel 
problems that must be taken into ac- 
count in strategy formulation. One must 
estimate the degree to which it is 
possible to maintain the conviction that 
the threat is as large as the strategist 
thinks it is. Unless such convictions are 
generally shared by leaders, all sorts of 
other attitudes will reassert themselves. 
One traditional attitude in this country 
is the suspicion that everybody is likely 
to exaggerate what he is interested in. 
After all, this is an advertising culture. It 
is a culture of Yankee traders. It is 
assumed that whenever any professional 
man tells you his services are needed, he 
is exaggerating, and making a self- 
serving declaration. 

If the level of popular conviction is 
not high, it is necessary to avoid sub- 
jecting the standard of living to sharp 
reduction. Otherwise it will be 
impossible to maintain full cooperation 
through long periods. It will be neces- 
sary to count on achieving our objec- 
tives, not by cutting civilian require- 
ments, but by diverting the annual 
increase of productivity into the defense 
program. 

If support is not intense, we must 
also make sure that all important 
elements recognize that they have high 
and tangible stakes in the production 
program. This applies to big and little 
business, investors, managerial groups, 
technical groups, farmers, and so on. 

Then it is obvious that we must 
estimate the possibility of keeping infla- 
tion under control (particularly by tax 
measures) in order to diminish the 
likelihood of alienating the fixed and 
low income brackets. 

We also have to estimate the degree 
to which it is possible to prevent black 
market operations, and the spread of 
administrative corruption. Obviously, 
we must consider the degree to which it 



136 



is possible to mobilize an effective 
demand for efficient law enforcement. 

Further, we must consider the likeli- 
hood that political police measures can 
be held to a minimum in the crisis. The 
traditional American attitude towards 
political police— toward the investiga- 
tion of individual loyalty— is one of 
great hostility. The problem is to esti- 
mate whether these attitudes can be 
modified realistically without alienating 
the unity of the country. 

Further, we have to consider to what 
extent it is possible to build up and 
sustain common unity of outlook, not 
only throughout the nation as a whole, 
but especially among young people and 
their families. 

Strategy also calls for weighing the 
political factors affecting the scale of 
preparation by allies. I shall go no 
further with this phase of the analysis. 

Rather, I shall mention another 
major element: calculating the signifi- 
cance of political factors affecting the 
possible scale and timing of losses in 
active warfare. This, I shall not have 
time to deal with. 

The formulation of strategy calls for 
the evaluation of political factors in 
connection with the choice of instru- 
ments of warfare and the mode of their 
application. I shall mention only a few 
ramifications of this extraordinarily im- 
portant matter. Plainly, one has the task 
of estimating the role of specific bases 
under various conditions of political 
reliability. One has the problem of 
weapon balance. Weapon choice is not 
only a matter of engineering compari- 
sons, but of weighing the chances of 
continued political support for various 
weapons. In some cases this means 
making concessions to the ease with 
which the support of certain industrial 
and territorial groups can be mobilized, 
and, as 1 heard some one remark, 
attention to the popular vogue of vari- 
ous weapons, even if this presents the 
problem of keeping up-to-date with 
popular education in the comic strips. 



Connected with weapon choice and 
application is estimating the effect of 
appearing to play the role of the aggres- 
sor (and also of appearing to play a 
passive role). 

Again, there is the problem of calcu- 
lating the effect of introducing new and 
"inhuman" weapons, or of following 
suit. It is worth considering the possi- 
bility of developing and introducing 
new and humane weapons in order to 
avoid negative political effects. Some 
years ago the "paralysis weapon" was 
suggested as the ideal weapon for 
humanitarians. The idea was to treat 
large masses of the population the same 
way as the individual patient in the 
hospital when you put him under an 
anaesthetic. 

We also have the task of estimating 
the usefulness of a weapon as a deter- 
rent and as a builder of confidence. 
Historically, of course, this has been one 
of the many role played by naval 
demonstrations. 

Further, target selection for strategic 
operations calls for the consideration of 
political elements. 

I turn now to another set of strategic 
calculations in which political factors 
cut an important figure: the orienta- 
tions and capabilities of the enemy. I 
shall first mention the problem of esti- 
mating the weight assigned to political 
factors in the enemy's strategic think- 
ing. What elements of his own popula- 
tion does he regard as liable or un- 
reliable for various activities? What ele- 
ments of other populations does he 
believe to be helpful under various 
circumstances? What are his expecta- 
tions about our policy and that of other 
nations? (We note in this connection the 
chronic underestimation of the fighting 
potential of the United States by 
despotisms). 

There is also the problem of the 
political responsiveness of the enemj to 
measures short of war, and to war itself. 
Here the greatest question is whether 
significant elements in the ruling elite 



137 



can be brought to recognize, by pro- 
cedures short of total war, that they 
have more to gain by cooperation than 
by noncooperation with the rest of the 
world. 

It is also necessary to assess the 
effect of internal cleavages, if they 
develop, upon the policy of an op- 
ponent Will the development of an- 
tagonisms among the peoples of the 
Soviet world lead to even greater con- 
solidation of garrison police states, or 
will it bring about a steady drift toward 
peaceful cooperation on the part of the 
top elite? We have in mind actual and 
potential cleavages separating Soviet cul- 
tures and nationalites, urban and rural 
populations, and the like. 

Let me bring this analysis to a close. 
Political factors, I have said, enter into 
the formulation of partial or total 
strategy. Political considerations relate 
especially to the intentions of ourselves 



and others, and also to the impact of 
every instrument of power upon inten- 
tions. The aim of strategy is to maxi- 
mize the realization of the goal values of 
the body politic in a democratic com- 
monwealth, and of the ruling few in a 
despotism. Political factors enter at least 
into the formulation of strategy in (1) 
the choice of objectives on the basis of 
our goal values and those of our present 
and potential allies; (2) the estimation 
of the possible scale and timing of 
preparations at home and on the part of 
allies; (3) the scale and timing of pos- 
sible losses by our own forces and our 
allies; (4) the choice of war instruments 
and their mode of application; (5) the 
estimation of the political considera- 
tions that figure in the strategical think- 
ing of the enemy; and (6) the weighing 
of the political responsiveness of the 
enemy to measures short of war and to 
war itself. 



t 



138 



POLITICAL FACTORS IN THE 



FORMULATION OF NATIONAL STRATEGY 



Harold D. Lass well 



Since military strategy is part of the 
decision-making process among partici- 
pants in world politics, we may begin 
our examination of the subject by con- 
sidering the arena of world affairs. A 
few years ago the professional students 
of international law, international rela- 
tions and strategy would give a glib 
reply when questioned about the iden- 
tity of the participants in world politics. 
They would talk in terms of the "state" 
or the "nation state". And this is still 
the conventional answer. But it has 
become increasingly unsatisfactory for 
anyone who must look beyond legal 
forms to the facts of power in a rapidly 
changing world. The conception of a 
"state" is formalistic. According to tra- 
ditional theory all "states" are "equal" 
once officially recognized by the 
existing members of the state system. 
Such a conception can scarcely be taken 
literally by anyone who looks at the 
power relations among governments. 
Side by side with the language of 
international law there has grown up a 
vocabulary designed to describe the 
distribution of effective power. It 
speaks of great powers, middle powers, 
small powers and dependents; and, more 
recently, in view of the tendency 
toward bipolarity, of "superpowers" or 
"giant" powers. It is clear that any 
serviceable categories will use two sets 



of terms, one for formal authority, and 
the other for effective control. If we say 
that sixty or seventy states are sovereign 
equals, we must also be able to say that 
the effective pattern of power in the 
world arena is bipolar, polypolar, multi- 
polar, or whatever else the facts indi- 
cate. We can make very important dis- 
tinctions between lawful power (au- 
thoritative and controlling), naked 
power (controlling but not authorita- 
tive), and nominal power (authoritative 
but not controlling). 

The disadvantage of taking the state 
as the unit of participation in world 
politics is not only that the distinction 
between formal and effective power is 
blurred, but that other participants have 
become so important that it is mis- 
leading to relegate them to a sub- 
ordinate position. International inter- 
governmental organizations have been 
set up by official action for general 
purposes (League of Nations, United 
Nations), and for a diversity of special 
purposes (health, science, and the like). 
It is true that these organizations 
operate under the formal authority of 
national states. But an examination of 
their influence will show that on some 
matters they are of decisive importance. 
The result of having an international 
hierarchy of officials, and assemblies 
and councils that meet frequently is to 



139 



establish a new mechansim of much 
greater weight on many subjects than 
was possible when intergovernmental 
cooperation was sporadic and bilateral. 

The list of participants needs also to 
be enlarged by adding transnational 
political parties. They are not always 
under the domination of any one gov- 
ernment. The communist movement, 
for instance, was a power factor in 
world affairs long before the seizure of 
power in Moscow in 1917. International 
bands of revolutionists were active for 
decades seeking to organize bases for 
revolutionary seizures whenever crises 
of unemployment, of military defeat, or 
some other catastrophe created a revolu- 
tionary situation. Even when a revolu- 
tionary party organization is trans- 
formed into a humble appendage of an 
existing government, some of its remain- 
ing influence comes from the impression 
in various quarters that it represents 
something bigger than the government 
in question. 

Besides transnational political parties 
there is much to be said for adding the 
supranational pressure groups to the list 
of effective participants in the decision- 
making process of the globe. Pressure 
groups are set up for the purpose of 
influencing policy. They differ from 
political parties in that they do not 
formulate comprehensive political pro- 
grams, or openly put up candidates in 
elections. A recent tabulation suggests 
that about a thousand supranational 
pressure organizations are actively pro- 
moting changes in the educational, 
medical, economic and other relations 
among peoples. 

When we go behind supranational 
pressure groups and parties we typically 
come to private associations that 
operate across national boundaries. 
These organizations are not primarily 
specialized to the power value; rather, 
they use power incidentally to other 
purposes. In this connection think of 
the impact of business organizations 
that reach across many frontiers, and of 



trade unions, churches, scientific and 
professional associations. Private organi- 
zations have often been strong enough 
to upset governments, and to give de- 
cisive help to new regimes. 

If we push our analysis far enough 
we come to individual human beings. 
Influential individuals (and families) 
often operate transnationally. 

The position of the military strategist 
in the modern decision-making process 
is highly diversified. In some places he is 
the advisor to a national government, as 
in the U.S. Elsewhere he may be the 
advisor of a government that purports 
to represent several nations. When the 
element of coercion plays a significant 
part, we speak of an empire (like the 
Soviet Empire) rather than a unified 
national state (like Sweden). In some 
cases the military strategist is advising a 
small political class that is relatively cut 
off from the rest of the society under its 
control. The members of this small 
ruling class may follow world affairs, 
and share the news and comment cur- 
rent among all who keep in touch with 
happenings throughout the globe. Below 
the political elite the society may be 
composed of kinship groups more con- 
cerned with tribal affairs than with the 
world at large. The underlying popula- 
tion may be nomadic or agricultural. It 
may remain self-absorbed in the tread- 
mill of the seasons and the world views 
of a traditional culture. The underlying 
population may be more or less dis- 
organized as a result of employment as a 
labor force in mines, plantations and 
other large-scale operations. The politi- 
cal role of the strategic advisor is cir- 
cumscribed by the integration of the 
top decision makers with the society as 
a whole. 

The military strategist often grades 
over to the role of a police officer or a 
subversionist. We all know the usual 
distinction between a military specialist 
and a policeman. According to our 
tradition the proper function of the 
armed forces is to repel foreign enemies, 



140 



and we are inclined to look with a 
jaundiced eye upon attempts to involve 
these forces in the maintaining of in- 
ternal order. The civilian tradition of 
English speaking countries has led us to 
put blocks in the road of executives 
who want to use the armed forces at 
home. (Our history recalls the abuse of 
authority in the hope of preserving 
unpopular dynasties). 

In modern despotisms it is impossible 
to recognize a sharp line between mili- 
tary and police forces. Consider the 
interpenetration of the German officers 
corps by the Nazi party, and the com- 
plex allocations of responsibility for 
compulsory labor camps at home and 
abroad, and for extermination camps; 
and for the encouragement of foreign 
subversion. 

To some extent the encouragement 
of foreign subversion has always been 
part of the military function. It has 
been taken for granted that an intelli- 
gence job would be done in advance on 
possible opponents (in addition to war- 
time operations). Inducements would be 
employed to encourage spies to betray 
the nation. Often these operations im- 
plicate large numbers of people. (We 
hear of the 70,000 agents used by the 
Germans in anticipation of 1870.) In 
more recent years the appearance of 
despotism, bipolarization and acute 
ideological conflict have enormously 
increased the strategic role of subversive 
activity. 

Under modern conditions, therefore, 
military officers sometimes find them- 
selves acting as advisors and liaison men 
to very strange groups indeed. They 
may work with supranational political 
parties to improve the strategy and 
tactics of espionage, sabotage and street 
fighting. From Nuremburg and other 
sources we know of the prewar use of 
military advisors in connection with 
paramilitary formations and pressure 
organizations of many kinds. (Theie is, 
by the way, a big literature on the 
revolutionary technique evolved by the 



social revolutionists of the nineteenth 
century and the early twentieth, some 
of whom had professional training and 
experience). 

When we consider the intimacy of 
association between strategists and top 
decision makers, the connection appears 
to be closest when the government has 
been taken over by military coup. But 
the top man may be satisfied with his 
own genius as a planner and a com- 
mander, so that anyone who is invited 
to advise finds that he is relegated to a 
modest role. Even under these circum- 
stances, however, the advisor may be 
more than a "yes-man" who thinks only 
when spoken to. He may continue to 
make independent analyses of the fac- 
tors that influence the security of the 
whole nation, and seek to clarify the 
minds of top decision makers concern- 
ing long-run matters. Cases of this kind 
have occurred among the advisors of 
warlords who seized power in some 
province in China. There have been 
nationally-minded advisors who tried to 
shepherd their warlord along the path of 
unifying the whole Chinese people in 
order to maintain the integrity of China 
under modern perils. 

It is noteworthy that trained officers 
are not as a rule at the top of modern 
mass party movements which have cap- 
tured power. Actually there is latent 
and often overt tension between the 
leadership and trained officers. Men like 
Mussolini, Lenin and Hitler were gifted 
propagandists and organizers of mass 
movements who looked with mixed 
feelings at general staffs and top com- 
mands. The communist party was so 
fearful that the central policy of the 
organization would be under the domi- 
nation of military specialists that they 
made a cult of the supremacy of the 
political man over the specialists. An 
entirely new set of officers was trained 
as rapidly as possible after the Civil W ar 
period in the hope of wiping out ideo- 
logical residues of the pre-Bolshevik era, 
and of indoctrinating officers of the 



141 



Red Army with the fundamental im- 
portance of subordinating themselves to 
the central policy organs of the party 
(and government). Threatened by revolt 
and intervention, however, the commu- 
nist rulers of the Soviet world have been 
recruited from individuals who almost 
invariably have political police training 
and experience. The Nazi movement 
took over control of the officers by the 
tactics of "divide and rule." Compliant 
members of the officers corps were 
advanced, while the more towering pro- 
fessional personalities were gradually 
disposed of by whatever methods (in- 
cluding false charges) were expedient. 

In a nation possessing a strong tradi- 
tion of popular rule, like the U.S. and 
Great Britain, the political factors in the 
formulation of strategy are in one sense 
simple. In Britain the responsibility for 
top decision rests with the Cabinet and 
the Parliament, and eventually the elec- 
torate. In the United States the integra- 
tion rests with the President and the 
Congress, and ultimately the electorate. 
Formally speaking, political assump- 
tions are communicated to the strategist 
by the competent political authorities, 
who receive advice for the overall imple- 
mentation of the national policy goals 
and objectives recommended. Top au- 
thorities clarify and commit national 
policy in the light of the advice ten- 
dered by the military strategists, and by 
those charged with diplomatic, eco- 
nomic and ideological implements of 
policy. 

In practice the relation of the mili- 
tary strategist to the top is far from 
attaining such diagrammatic clarity. 
First of all, the words in which national 
goals and objectives are stated tend to 
be ambiguous or ultraspecific. That is, if 
the President or the Congress is asked 
what they want to achieve in the 
domain of foreign policy in the next 
five years, the replies are likely to sound 
very ambiguous indeed. We know of 
course that the national security calls 
for the deterrence of aggression by 



foreign countries, abstinence from 
aggressive acts on our part, and success- 
ful counteraction if necessary. But the 
translation of these broad requirements 
into more operational terms is not easy. 
By ultraspecificity is meant words that 
sound definite enough, but which must 
be taken with a grain of salt. Even the 
most emphatic and explicit statement 
may be a poor guide for the future. (In 
the U.S. the strategist is likely to re- 
member Korea). 

Uncertain as this may appear to be, 
such are the facts of life in popular 
government. The military strategist 
must adapt himself to performing his 
obligation to the nation within this 
framework. On reflection, however, we 
conclude that the advisor-planner is by 
no means as devoid of guidance as the 
foregoing paragraph may suggest. By the 
proper use of the appropriate tools of 
investigation and analysis, much can be 
learned. By examining the trends of 
official policy in this country and 
abroad, the strategist is able to predict 
some of the situations involving national 
security that may arise, together with 
the policy objectives likely to be sup- 
ported at home and abroad. The projec- 
tion of past trends will often show that 
conflicts are in the making (typically 
when two opposing developments are 
practically certain to meet). The re- 
arming of Germany, even in pre-Nazi 
days, pointed toward changes in the 
balance of power throughout Europe 
(and hence throughout the globe). Ade- 
quate interpretation of the future obvi- 
ously calls for more than simple extra- 
polation of past lines of change, and the 
uncovering of facilities or incompatible 
trends. It is important to conduct a 
scientific examination of the balance of 
factors that have favored or retarded a 
given response, and to include in the 
assessment of the future, estimates of 
the probable presence or absence of 
these conditioning factors. 

If we look at the history of strategic 
planning and recommendation, it is 



142 



clear that the professionals have some- 
times failed to make use of the tools of 
comparative historical, scientific, and 
projective analysis which are essential to 
the task. Our war histories are now 
calling attention to a number of alleged 
limitations that affected strategy be- 
tween the two world wars. It appears 
that too much weight was given to the 
headlines of the twenties and early 
thirties. The prevailing tone of the 
Presidents, the Congress, the political 
parties, the pressure groups, and the 
press was "isolationist." Since the U.S. 
had no diplomatic commitments to an 
ally, forward planning was often made 
on the assumption that the U.S. would 
go it alone in the war crisis of the 
future. 

The tools of analysis to which I have 
referred in making an assessment of 
political factors affecting U.S. policy 
were actually used with success by the 
advisors of other governments. Im- 
portant elements in Great Britain, for 
instance, correctly foresaw that if 
Britain were threatened by a resurgent 
Germany, the U.S. would interpret our 
national security to include the defense 
of Britain, and the prevention of the 
unification of Western Europe by con- 
quest. 

In developing strategies in execution 
of national objectives, once clarified (or 
postulated), a fundamental question is 
how much initial loss can be endured by 
the nation. How much loss can the U.S. 
afford to suffer at the outbreak of a war 
in which modern weapons are used by 
the opponent in his surprise attack? 
This is a more complicated question 
than tabulating and estimating data 
about weapons and industrial capacity. 
It is necessary to estimate the crucial 
political factors. Will losses of a certain 
magnitude (of people and production 
facilities) produce a disproportionately 
great increase in disunity? Will this 
significantly influence the strength of 
the immediate counterattack against the 
enemy? Will it importantly affect the 



restoration and use of production 
capacity in order to mount a decisive 
offensive within a relatively short time? 

At first it appears that there are no 
exact parallels from the past. Crippling 
as the Japanese surprise attack was, for 
instance, it did not demolish a large 
fraction of our production facilities, nor 
decimate a significant fraction of our 
population. But it is possible to discern 
pertinent variables in past situations. 
Suppose that we try to envisage the 
direction, intensity and efficiency of the 
response of the American people should 
our industrial centers be made unusable 
by surprise, and the scale of civilian 
casualties reach unprecedented heights. 
There have been cases of disaster in 
which panic has been held at a mini- 
mum. One factor was the very long 
anticipation shared by the public that 
the disaster might occur. Another point 
is that the members of the community 
must not feel that they deserve to suffer 
because they have been led into disaster 
by self-serving and short-sighted men. 
Furthermore, in the midst of a disas- 
trous blow unity may be sustained if 
there is equality of treatment of all 
sufferers, irrespective of region, religion 
and color. 

In calculating strengths and vulner- 
abilities in so far as they involve politi- 
cal factors, it is essential to consider all 
major deprivations to assess the 
probable response of the different com- 
ponents of the population, and to esti- 
mate the changes in attitude that are 
likely to be brought about between now 
(the time the estimate is made) and 
when the attack is postulated to occur. 

All this has a bearing on such major 
estimates as the size and nature of the 
burden to be imposed upon the nation 
in advance of hostilities. Assume that 
we can make a dependable estimate of 
the level of armament that would exer- 
cise a stateable degree of deterrence of 
potential attackers. An element in the 
final choice of armament level is the 
probable internal effect of various levels 



143 



upon U.S. unity. (Can we say, for 
instance, that when a specified level is 
exceeded, a comparatively sharp in- 
crease in disaffection follows?) 

Up to this point we have looked at 
the position of the military strategist in 
the modern world, and paying particular 
attention to the political factors perti- 
nent to the goals, objectives, strengths 
and vulnerabilities of the national policy 
served by the strategist. We shift now to 
another dimension of the problem, and 
examine some political elements that 
enter into the response of potential or 
actual opponents. We must see the 
world from the standpoint of the cur- 
rent and the prospective decision 
makers of foreign powers. Hence we 
encounter the same kind of uncertainty 
that enters into the interpretation of 
our decision makers. Even if we were 
able to ask those in charge of top policy 
abroad when they propose to attack (if 
at all), the replies (even though candid) 
might be ambiguous, or show the same 
ultraspecificity of which we remarked 
before. We can no more take the dic- 
tators at face value than we can take the 
democrats. In evaluating even direct 
testimony we must consider the imprint 
of another purge, or of a great success 
or defeat in an intermediate country. 

The examination of the policy goals, 
objectives, strengths, and vulnerabilities 
of the potential opponent calls for the 
estimation of developments, assuming 
first that our policy remains much the 
same. Later we bring in the considera- 
tion of the impact of possible changes in 
our own policy. A key question in 
reference to the decision-making process 
abroad is parallel to the question that 
we posed in reference to our own 
nation: What are the present authorita- 
tive prescriptions for the making of such 
basic decisions as war or peace? Do the 
agencies charged with nominal authority 
appear to have effective control? Who 
are the effective decision makers: What 
are their politically significant perspec- 
tives? How are these perspectives 



influenced by cultural characteristics? 
Class origins? Experience? Personality 
traits? By the security or insecurity of 
the position of leaders now or at various 
levels of crisis? In the future if changes 
occur in the group composition of the 
leadership, will it make any difference 
so far as the policies in which we are 
interested are concerned? For instance, 
if the leadership is widely recruited 
from diverse nationality groups, will it 
make for more or less internal unity, or 
for more or less aggressiveness in foreign 
relations? If the coming elite is largely 
recruited from the recently established 
families of the army, police, party 
bureaucracy, official bureaucracy, will it 
have any significant effect? (For in- 
stance: are those with military police 
experience so sensitive to internal divi- 
sion that they are timid about launching 
a war? Are they so much impressed by 
the progress of subversion at home that 
they believe a war to be necessary to 
preserve the regime? Are they so much 
impressed by report of subversion 
abroad that war appears unnecessary in 
order to win out in the world struggle? 
Are they impressed by the absence of 
successful subversion abroad so that 
security seems only possible as a result 
of successful war?) Are the personalities 
who come to the top in the regime 
willing to take great responsibility for 
important decisions; or, on the con- 
trary, are they accustomed to evade 
risky decisions by temporizing? Does 
this mean a drift into war because the 
top leaders do not stand out against a 
growing consensus among their num- 
bers? Or does it mean that war is 
continually postponed?) 

The foregoing questions have been 
directed to considering the composition 
of the decision makers, and assessing the 
perspectives in which they are likely to 
view political matters of importance to 
our security. A further step is necessary. 
Besides thinking of the results of a 
possible change in elite composition, we 
must estimate the probability that 



144 



significant changes will in fact occur. 
This calls for a systematic examination 
of the social processes which are likely 
to affect the political process of the 
opposing power. Without making an 
exhaustive inventory, we can at least 
direct attention to some dimensions of 
the total problem: 

Wealth (economic institutions). What 
are the probable changes in the tech- 
nology and the magnitude of produc- 
tion? Standards of living? Saving and 
investment? How will these develop- 
ments affect the perspectives of the 
political elite? 

Respect (social class institutions). 
How is the class structure likely to 
change? That is, will the upper, middle 
and lower respect groupings become 
more or less mobile? Will this increase 
or decrease the unity of the community 
as a whole? How will these changes 
influence the perspectives of the effec- 
tive elite of power? 

Well-being (safety, health, comfort). 
How are the numbers, and the physical 
and mental health, of the population 
likely to change? Will internal tensions 
be increased and the pressure for ex- 
ternal expansion increased or reduced? 

Enlightenment (public information, 
civic education). Will information about 
the outside world available at all levels 
become more fantastic, so that the 
external world is viewed as vile and 
pusillanimous? Will the information 
available at the top share this image 
progressively, or will it on the contrary 
diverge from the popular picture, 
creating perpetual sources of tension in 
the control of international chauvinism? 
Despite the images purveyed in mass 
media of communication controlled by 
the government, will undercurrents of 
scepticism result in a general disinclina- 
tion to credit officially propagated 
statements, and produce a feeble posi- 
tive faith in the destiny of the whole 
community in its foreign relations? 

Skill (professions and occupations). 
Will the growth of industrialization 



bring with it a network of scientific, 
engineering, and skilled labor talent so 
absorbed in improving their own condi- 
tions of life and opportunities that there 
will be little interest in external expan- 
sion? Or will the growth of some skill 
groups create strong vested interests in 
expansion, in order to gain greater scope 
than the home countries permit? 

Affection (family, fraternal institu- 
tions). Will the pervading suspiciousness 
characteristic of all forms of public life 
lead to intense emotional bonds among 
members of the family and the early 
friendship group, with the result that 
the security of the intimate circle is 
more significant than more grandiose 
dreams of expansion in the name of 
larger social units? Or will the concern 
for the family have the effect of leaving 
politics in the hands of egocentric, 
calculating and unscrupulous persons 
who are concerned with the vast drama 
of world politics, and willing to take all 
the risks involved? 

Rectitude (standards of right and 
wrong, of responsibility). Will the older 
religious faiths continue to survive and 
indeed gain in vitality? Will secular 
doctrines lose their capacity to involve 
fervent faith and self-sacrifice? How will 
these changing standards influence the 
outlook of persons who have an oppor- 
tunity to take a strong role in political 
affairs? (e.g., will they withdraw and 
leave the decision to the utterly un- 
scrupulous; or will they develop a sense 
of responsibility for ameliorating the 
general condition of tension?). 

It will be observed that the categories 
employed here refer to a way of de- 
scribing the social process of any com- 
munity, whether a local nieghborhood, 
a nation, or even the world as a whole. 
We speak of the social process as man 
pursuing values through institutions 
using resources. The values (the cate- 
gories of preferred events) are kept few 
for convenience of analysis (eight: 
power, wealth, respect, well-being, en- 
lightenment, skill, affection, rectitude). 



145 



The specialized patterns by which these 
values are shaped and shared are the 
institutions. Social processes may be 
compared with one another according 
to the degree in which values are widely 
made available to the members of the 
whole community, or the degree to 
which they are concentrated in rela- 
tively few hands. The first is a society 
that is relatively democratic; the second, 
relatively despotic (or a traditional 
oligarchy). 

Having appraised the current and 
prospective decision-making process of 
the opposing power, the strategist is in a 
position to evaluate the probable impact 
of the various instruments of action 
available to his own decision makers. 
Repeating a previous analysis it is con- 
venient for many purposes to say that 
the goals and objectives of national 
policy may be sought by four major 
instruments of policy: military, eco- 
nomic, diplomatic, ideological. The dis- 
tinctive means of military strategy are 
arms; of economic strategy, goods; of 
diplomacy, deals; and ideological 
strategy, words. In terms of distinctive 
effects military strategy aims at destruc- 
tion (or production), economic strategy 
at scarcity (or abundance), diplomacy at 
the disunity of leaders (or unity), and 
ideological strategy at the disunity of 
masses (or unity). As a check list: 



Strategy 

Military 
Economic 
Diplomatic 
Ideological 



Distinctive Means 

Arms 
Goods 
Deals 
Words 



Distinctive Effects 

Destruction (or protection) 
Scarcity (or abundance) 
Disunity of Leaders (or unity) 
Disunity of Masses (or unity) 

The formulation and execution of 
military strategy calls for the proper 
articulation of all distinctive military 
means and effects with all the instru- 



ments by which national policy objec- 
tives are sought. The overriding prin- 
ciple is that of maximization, or the 
attainment of all the values sought by 
policy at the least cost (appraised in 
terms of those values). When we speak 
of political factors in the formulation of 
strategy we are referring to the assump- 
tions that are to be made about the 
national goals and objectives to be 
accomplished; and further the weight to 
be assigned to factors of intention in 
achieving of these aims. 

These instrumentalities of national 
policy may be employed in situations 
short of war, in war, and at the end of 
war. For the moment we are thinking of 
the political factors involved in the use 
of military strategy (in the context of 
policy goals, and in coordination with 
the other instruments of policy) in 
situations short of war, and intended to 
influence the opposing elite. We assume 
that the goals pursued are the deter- 
rence of aggression by the opposing 
power, and the maintenance of a posi- 
tion which, if necessary, would enable 
us to use force effectively if aggression 
occurs. 

In this connection we note first of all 
that military instruments possess certain 
special advantages in the prosecution of 
national policy in these short-of-war 
situations. I refer to the well-nigh com- 
pulsory control that can be exercised 
over the focus of attention of the 
opposing elite by moving our own 
"hardware." Ships, planes and guns are 
very tangible indeed, and exert per- 
emptory control over the senses of 
those who are equipped to recognize the 
political significance of weapons. The 
top staffs and decision makers abroad 
must pay the same strict attention to 
our hardware that we do to theirs. 

This point applies universally. But 
there are special factors that predispose 
the members of some ruling elites to 
emphasize the significance of military 
weapons. Suppose that our opponent is 
indoctrinated with the idea that the 



146 



"capitalist" enemy never does anything 
unless it is the outcome of a deep laid 
and hostile plan. This results in "over- 
interpretation" as well as over-sensitive- 
ness to whatever weapon changes are 
attributed to us. 

Assume further that the opposing 
elite is heavily indoctrinated about the 
importance of material factors in gen- 
eral. The emphasis upon such tangibles 
as the weapon and the factory under- 
lines the significance attributed to de- 
velopments on our side of these matters. 

Suppose that the opposing elite is 
indoctrinated to think of themselves as 
"encircled" by a world conspiracy 
headed by the U.S. This predisposes 
them to give particular attention to 
moves anywhere in the world that 
appear in any way connected with us. 

As instruments of national policy 
during periods of low-burning (as well as 
explosive) crisis it is clear that military 
weapons excel in manageability. They 
are amenable to central direction by 
professional planning and operating per- 
sonnel: and they are run with an eye to 
security considerations. 

The disposability of weapons, of 
course, is a factor that often results in 
the abuse of military instruments during 
short-of-war periods. Suppose that the 
problem is to induce the potential 
enemy to abstain from an aggressive 
action. If our weapons are unready, and 
if the intelligence services of the other 
side are in effective working order, it is 
folly to imagine that we are "deterring 
aggression" by moving some of our 
ships, guns and planes closer to their 
boundaries. (The task is always to esti- 
mate the opponent's estimate of our 
intentions and capabilities). 

The disposability of military weap- 
ons often leads to another abuse, which 
is failure to plan military activity as part 
of a properly prepared joint enterprise, 
involving the articulation of diplomacy, 
economics and ideological instruments. 
A case in point is failure to provide in 
advance for the timing of peacetime 



weapon tests in such a manner as to 
extract the maximum benefit. 

We have seen the impromptu use of 
weapons which brought about the with- 
drawal of an opposing power from a 
position judged by us to be contrary to 
our national policy. The use of the 
Berlin airlift is a famous case. A more 
dramatic example would be the use of 
our combined weapons to bring about a 
withdrawal from occupied countries. 
The top decision makers must obviously 
be willing to shoulder the risk of war in 
connection with such moves. Otherwise 
the deterrence effect will be frustrated 
(as above, when the aim was to induce 
the opponent to abstain rather than to 
withdraw). 

By putting so much emphasis upon 
abstinence and withdrawal, we have 
diverted attention from other aims of 
national policy as they affect potential 
opponents. The dominant objective may 
be to induce cooperation for purposes 
compatible with our security. One of 
the declared goals of American policy is 
to bring about by negotiation, if pos- 
sible, an end to the present armament 
race on terms compatible with our 
national security. 

It is generally recognized that if this 
objective is to be achieved, a yet more 
fundamental purpose must be realized. I 
refer to the reconstruction of the policy; 
orientation of the opposing power. It is 
not enough from the standpoint of 
national security to gain local and un- 
limited success in terms of abstinence, 
withdrawal or cooperation. By this time 
it has become quite clear that the 
outlook must change of those who are 
making the effective decisions else- 
where. In a sense our rearmament since 
1945 has been a "short-of-war" activity 
designed to accomplish a permanent 
change, by peaceful means if possible, 
of the effective policies of the Soviet 
Union. By maintaining superiority in 
arms, while abstaining on our part from 
aggressive action, the hope has been to 
reduce the confidence of the Soviet 



147 



Union elite in their doctrinaire outlook 
and their aggressive policies. 

Finally, we turn to the use of mili- 
tary instruments in situations short of 
war for the purpose of influencing an 
associated or uncommitted power. One 
of the objectives can be withdrawal. We 
may want to put a stop to the continu- 
ation of measures that in our judgment 
endanger the peace, and promise no 
compensating gains for security. We 
may go so far as to use blockade to 
bring about this modification of policy 
on the part of a power with whom we 
are on generally friendly terms. 

The object may be abstention. We 
may act to prevent extensions of mea- 
sures which may appear contrary to our 
national security interests. 

The object may be cooperation. Ob- 
viously an overriding aim of NATO is to 
organize cooperative activity against a 
common threat. 

The objective may be reconstruction. 
The U.S. has repeatedly declared itself 
in favor of bringing new institutions 
of unity into existence in Western 
Europe. 

The consideration of any of these 
moves involves an examination of fac- 
tors affecting policy in the associated or 
uncommitted country, an examination 
no less exhaustive than we have referred 
to in case of an opposing power. With- 
out reiterating the fundamental cate- 
gories, the crucial point is whether our 
influence will strengthen or weaken 
national unity. Where the ruling elite of 
the associated power does not have the 
support of the underlying masses of the 
population, we are in the delicate posi- 
tion of needing to handle our policy 
instruments in such a manner as to bring 
about integration without further weak- 
ening of the power in question. Where 
the ruling elite has a great deal of 
popular support we have the problem, 
which has many conspicuous difficul- 
ties, of managing our relations in such a 
manner as to refrain from compromising 
our friends, and lowering their accept- 



ability at home by seeming to transform 
them into puppets of our national 
needs. 

There is no time to deal with the 
political questions that arise in em- 
ploying military instruments of national 
policy in time of general war, or in 
immediate postwar periods. To some 
extent this omission is made because 
most of the modern discussion of our 
subject deals with problems of coalition 
war, and in seeking to work in harness 
with allies who may diverge in im- 
portant ideological and organizational 
particulars from one's own nation; and 
in striving to accomplish subversive re- 
sults in enemy jurisdiction. 

So far as U.S. public policy has been 
concerned in the past, some of the most 
conspicuous failures have been in 
meeting the problems that arise at the 
end of active hostilities. It is essential to 
define national policy well in advance of 
the "onslaught of peace" if the political 
preparation is to be successfully carried 
through for the mastery of postwar 
situations in ways that contribute to 
national security goals. 

On this note, we conclude. We have 
been viewing the political factors that 
concern national military strategy in a 
world arena whose participants are more 
diversified than the traditional concep- 
tion of equal sovereign states. We are 
dealing with a bipolarizing world, a 
world of international intergovern- 
mental organizations, of transnational 
political parties, of transnational pres- 
sure groups and individuals who may 
operate across traditional lines. The 
military strategist who is responsible to 
the top decision makers of modern 
powers under these conditions is con- 
fronted by a variety of problems and 
tasks that differ in many ways from the 
obligations of his predecessors. The 
political factors include the present and 
prospective assumptions to be enter- 
tained about the goals and objectives of 
national policy, and the articulation of 
military instruments with all the 



148 



instruments at the disposal of national 
policy. The task varies greatly in situa- 
tions short of war, in general war and in 
immediate postwar periods. The 
decisions affecting our national security 
now and in the future must be assessed 
by locating the effective as distinct from 
the formal elite, and by exploring the 
affiliations and experiences that influ- 
ence their political demands, expecta- 
tions and loyalties. In predicting the 
future of policy the impact of change in 
all spheres of the social process must be 
taken into account The potential im- 
pact of our own actions enters into the 
evaluation of the important decisions of 



the opposing leadership. Parallel ques- 
tions must be raised for associated and 
noncommitted powers, whether the 
objectives are primarily abstinence, 
withdrawal, cooperation or reconstruc- 
tion. In general, political factors are 
factors of intention of perspective: of 
conceptions of goal; of expectations 
concerning the past, present and future 
as it affects these goals; and of loyalties. 
The strategy of military instruments in 
this context is to maximize the attain- 
ment of our national objectives by 
influencing the expectations that favor 
the actions that serve these security 
aims. 



t 



149 



THE NATURE OF THE NATION-STATE SYSTEM 



David D. Warren 



Today international society consists 
of something like 120 units that we call 
states. The United Nations, with a roster 
expected to reach 110 in the Seven- 
teenth General Assembly, is approach- 
ing universality ; only a few nonmembers 
remain outside, such as divided Ger- 
many, Korea, and neutral Switzerland. 
This represents a marked increase in the 
size of the nation-state system over the 
past 20 years, largely owing to the 
liquidation of European-held empires 
and the emergence of so many countries 
in Asia, the Middle East, and Africa. Yet 
despite this growth, the international 
community remains an exclusive club. 
Each member-state has certain charac- 
teristics entitling it to admission— a de- 
fined territory, a permanent population, 
the capacity to enter into relations with 
other states, and most important of all, 
sovereignty. For every state is the su- 
preme law-maker and law-enforcer 
within its defined territory, recognizing 
no external authority as superior to 
itself. It is this characteristic especially 
which has so much to do with deter- 
mining the nature of the state system, as 
we shall explain below. 

Now while there is a natural ten- 
dency for man to regard the territorial 
state as the center of his universe, and 
to attribute to its permanence and 
durability in the scheme of things, we 
should not overlook the fact that other 
political units have served man in the 



past, disappearing from the scene as 
they have failed to fulfill his needs. Nor 
have all of these been identified with 
territory as is the modern state. Men in 
earliest times came together and or- 
ganized their lives on the basis of 
kinship in the family, clan, or tribe. And 
in the evolution of Western civilization, 
the present territorial state was pre- 
ceded by the extreme political fragmen- 
tation called feudalism, and before that 
by the empire and the city-state. All of 
these political units— the clan, the tribe, 
the city-state, the empire, the duchy 
and fiefdom, the modern territorial 
state— are alike in the fundamental 
objectives they have sought: (1) seci rity 
and (2) prosperity. The preamble of the 
Constitution, for example, lists the pro- 
vision of the common defense and 
promotion of the general welfare among 
the paramount concerns of the United 
States. As the course of history shows, 
failure to realize the aims of security 
and prosperity by any political unit has 
been responsible ultimately for its 
downfall. Also to be found in these 
political units, including the territorial 
state, are the same bedrock causes of 
conflict, both economic and political— 
the desire for food and resources un- 
evenly distributed, and the drive for 
aggrandizement. Moreover, major 
changes have generally occurred through 
the use of force, the application of 
overwhelming power. 



150 



It will be instructive to examine 
briefly the world of the Greek city-state 
because, in microcosm, that world so 
much resembles our own. Like the 
nation-state system, the city-state sys- 
tem was pluralistic, made up of a 
number of units varying in size and 
strength but autonomous, subjected to 
no outside authority. Physical propin- 
quity, different resource patterns, and 
economic needs, made for interde- 
pendence of the city-states. Some of 
them as maritime communities met the 
pressure of population upon a limited 
resource base by engaging in colonial 
enterprises, establishing settlements, and 
gaining access to food and raw materials 
away from home. Others sought se- 
curity and welfare by imposing their 
control over adjacent states or peoples 
through a superior show of force. Thus 
the Greek city-states, too, practiced 
imperialism. That same mechanism, the 
balance of power, operated again and 
again to frustrate the ambitions of 
empire entertained by the larger city- 
states— Athens, Sparta, Thebes or 
Corinth. The hegemony established by 
any of these over the others was short- 
lived, galvanizing them into unified 
action against the source of danger. 
Leagues or alliances came into being 
only to disintegrate after the common 
threat was ended or because of internal 
discord. Intrasystem rivalries were for- 
gotten when the Greek city-states 
banded together against the common 
enemy, imperial Persia, in the 5th cen- 
tury. 

Yet the city-state ceased to be a 
viable political unit; it could no longer 
provide, singly, for the requisite security 
and prosperity of its people. It was too 
small; some kind of effective and lasting 
union was needed if the city-state was 
to survive. The inability, however, of 
the city-states to create a wider union 
led to their absorption by Philip and 
Alexander. The city-state, in short, 
foundered on the rock of something 
resembling modern nationalism— the 



commitment of the people of individual 
city-states to their own way of life, their 
inability to rise above their narrow 
parochialism. 

If pluralism was the central charac- 
teristic of the Greek city-state system, 
unity became the order of the day 
under the Ptoman Empire, a unity which 
eventually embraced all of the Mediter- 
ranean world. Through conquests, the 
Roman domain expanded; political 
genius was responsible for its longevity. 
Bringing with them law and peace, 
extending citizenship to subject peoples, 
the Romans carried through a program 
of gradual assimilation. They accepted 
many practices and institutions where 
they went. They built a lasting empire 
on the solid footing of consent. So large 
did these holdings become, however, 
that it grew increasingly difficult to 
maintain effective control from a single 
center. Countermeasures developed in 
both the North and the East, economic 
disintegration sapped the empire's 
strength, and internal clashes weakened 
the fabric of imperial society. Rome, no 
longer able to supply security and wel- 
fare, collapsed. 

Still, the appeal of unity, though 
gone, exerted an attraction over the 
minds of men in the ensuing centuries. 
For once again pluralism characterized 
the political order. Briefly, it is true. 
Charlemagne dominated Western 
Europe. And in return for Charle- 
magne's military support, Pope Leo III 
revived the imperial idea, making 
Charlemagne the Emperor of the 
Romans in 800 A.D. The empire lasted 
only a short while, returning again, 
however, when Otto the Great was 
crowned Holy Roman Emperor in the 
10th century. Thereafter the title was 
associated with one of the Germanic 
rulers. But the facts did violence to the 
pretensions of empire. At most, that 
empire was confined to a group of 
German principalities: beyond these, it 
exercised no real authority. In Europe 
there existed real political decentralize- 



151 



tion, a multiplicity of duchies, fiefdoms, 
and principalities enjoying a large mea- 
sure of autonomy, over which wider 
kingdoms had only a nominal control. 
Whatever limited unity there was grew 
out of a common religion centered in 
Rome and fostered by a joint effort of 
the various crusades against the Eastern 
infidel from the late 11th century be- 
yond the middle of the 13th century. 

Great forces at work in the 14th and 
15th centuries, however, undermined 
the institutions associated with the 
Middle Ages and led to the formation of 
a new political unit, the territorial state. 
Contributing to this outcome was the 
growth of trade and urban centers 
accompanied by the rise of a new 
commercial class; the alliance between 
this class and the ruler, prince or king, 
bent on imposing order by force upon a 
congeries of petty principalities often at 
war with each other; and the schism 
within the Roman Church eventuating 
in the Reformation, the spread of 
Protestant sects, and an end to religious 
unity in Europe. 

The territorial state, representing a 
centralization of political power where 
before there had been diffusion, was 
early associated with the personal ruler 
or dynasty who had brought this about. 
Starting in a small cluster of Western 
European states— England, France, 
Spain, Portugal, the Netherlands— the 
new political unit has spread, attaining 
worldwide coverage over the past four 
and a half centuries. Situated as they 
were on the Atlantic, these first terri- 
torial states were in a position to convey 
their greater power via the ocean high- 
ways, and to impose that power upon 
the weaker societies found on the great 
frontier opened up by exploration in 
the Americas, Africa and Asia. The 
European overlords brought with them 
not only their superior technology and 
administrative techniques; they also in- 
troduced their methods of political or- 
ganization. The subordinated groups 
gradually adopted the same claims made 



by their rulers— the right to control their 
own affairs without interference. For 
there is a fundamental conflict between 
the assertion of sovereignty by the 
territorial state, involving in essence the 
rejection of any external authority, and 
the practice of imperialism, which 
means the extension of one state's 
control over another people and thus 
the denial of the latter 's right to sover- 
eignty. 

The striking contrast between condi- 
tions within the territorial state and 
those obtaining outside in the growing 
community of states, lies in the order of 
the one as against the chaos of the 
other. That is, while sovereignty 
brought peace, regularity, and stability 
to the territorial state, the refusal of the 
state to recognize any authority above 
itself made for anarchy and conflict in 
the relations between states entertaining 
identical views about their sovereign 
rights. The great achievement of the 
territorial state internally has been its 
ability to bring about peaceful change, 
adjusting conflicts through a highly 
developed machinery of government. In 
international society, by contrast, that 
machinery is rudimentary, operating 
with nothing like the efficiency it has in 
domestic society. 

The absence of a supranational law- 
making, law-interpreting and law- 
enforcing authority armed with a 
monopoly of force compels each state 
to rely on its own efforts in order to 
preserve its identity and to realize those 
aims which it considers vital. As a 
consequence every state is obsessed with 
maximizing the power, human and ma- 
terial, available to it in order to increase 
its security. 

But power is always relative, involv- 
ing a relationship between one person, 
group, or political unit and another. 
Thus one nation's increase in power is 
bound to be viewed as a threat by one 
or some neighboring states. Politics 
everywhere involve a struggle among 
competing groups for power, for control 



152 



by one or more groups, over the be- 
havior of the other. That competition in 
turn is the inevitable outgrowth of the 
divergent— and unlimited— wants and 
needs impelling group organization and 
activity. The nation-state is simply the 
largest, most cohesive, and demanding 
of the many groups to which men 
belong. But just because peace-making 
and peace-keeping processes do not 
function nearly so effectively as they do 
within the territorial state, interstate 
relations come closest to resembling a 
naked struggle for power. Politics, while 
necessarily involving conflict among 
groups, also requires some measure at 
least of cooperation. In the interna- 
tional arena, obviously, elements of 
conflict far outweigh elements of co- 
operation. The great dilemma for the 
nation-state system has always been, 
and still remains, how to bring about 
peaceful change in a world whose only 
certainty is change, thereby making 
impossible any and all attempts to fix a 
given status quo permanently. In sum 
then, given an environment of interna- 
tional anarchy, the constant striving for 
security by each state only serves to 
intensify the storms of insecurity by 
which the world of nation-states is 
buffeted. 

Reflecting these conditions, states 
have employed war as a means to 
further their important objectives. The 
very acceptance of the legality of war 
well into the 20th century was proof of 
the reliance on self-help and, ultimately, 
violence by states in resolving disputes. 
Not for nothing has war been termed 
the "endemic disease" of the nation- 
state system. The history of that system 
could almost be described as one of 
chronic warfare punctuated by brief 
respites of peace. This is not to say that 
the character of war has remained the 
same. Before the territorial state system 
had fully evolved, war became total as 
Europe was convulsed in the 16th and 
early 17th centuries by religious contro- 
versy. At last the Treaty of Westphalia 



in 1648, accepting a pluralistic com- 
munity of territorial states and the 
principle of religious toleration, ushered 
in a new age. During the next two 
centuries wars still occurred but they 
were, compared to the earlier religious 
conflicts, limited in their aims and 
prosecution, dynastic rivalries for the 
most part fought for modest stakes by 
practitioners schooled in the rules of the 
game. 

All this was to change, however, after 
1900 in what the French writer, Ray- 
mond Aron, has aptly called "The Cen- 
tury of Total War." Once more, and far 
more completely, war took on a total 
aspect, pervading every level of society, 
making immoderate demands upon its 
participants and seeking total, not 
limited goals. But owing to the intro- 
duction of a new factor it may well be 
that there shall never again be a total 
war. That new factor is, of course, the 
technological revolution in weapons 
achieved through the invention of 
thermonuclear bombs. It has pro- 
foundly altered the nature of war, pre- 
cluding resort to the big war between 
wielders of this awesome power. If 
man's actions were always guided by 
rational motives, this belief in the elimi- 
nation of total war might be soundly 
based. There is little in the record of 
man's behavior, unfortunately, to 
justify such confidence in his ration- 
ality. The big war which nobody wants, 
arising simply from human miscalcula- 
tion, excessive ambitions, or sheer mad- 
ness, cannot be ruled out. And even if it 
could, war would still have to be reck- 
oned with as a very real possibility in its 
limited forms, both conventional and 
unconventional. In fact, the very un- 
suitability of total war in the modern 
world puts renewed stress upon ade- 
quate preparations for limited war in all 
its varieties. 

An extremely influential force 
moulding the nation-state system and 
not to be ignored in any critique of this 
system is, of course, nationalism. Every 



153 



political unit in history has drawn 
strength from an emotion analogous to 
that of modern nationalism. For no 
political unit will endure for long unless 
it is able to arouse and maintain among 
its members a sense of loyalty and 
devotion. Now modern nationalism is 
distinguished from manifestations of 
pride in being associated with a tribe, 
city-state or empire, by its greater inten- 
sity and the extent to which it reaches 
and moves nearly all members of the 
nation-state. The rulers responsible for 
centralizing political power in the first 
territorial states won the active allegi- 
ance of only a portion of their subjects. 
The transition from the dynasty to the 
nation-state, starting with France in the 
late 18th century and thereafter gaining 
rapid momentum elsewhere, was 
marked by the identification of the 
masses, the people themselves, with the 
interests of the state under which they 
lived. They and their energies were 
enlisted in the causes of the state: they 
suffered and gloried in its defeats and 
accomplishments. A widely held expec- 
tation in the 19th century was that once 
the different peoples sharing this sense 
of identity, of common purpose, had 
satisfied their desire to run their own 
affairs, conflicts among national groups 
subsisting under their own governments 
would evaporate. But the triumph of 
nationalism almost everywhere has had 
no such result. In actuality nationalism 
has only abetted the drive for power 
and influence among the nation-states. 
It has magnified that sense of superi- 
ority over other groups which lies at its 
core. It has distorted the attitude of 
national groups in their relations with 
each other and justified any course of 
action that a people wish to pursue, 
however partisan and self-seeking their 
real motives might be. 

A central question which must be 
asked about the nation-state is whether 
it has been able to meet the demands 
upon it, as upon all political units, for 
security and prosperity. For, after all, it 



was the search for these prime goals and 
the failure of the preexisting system to 
provide them that led to the birth of the 
territorial state. The purpose of central- 
izing political power and of establishing 
the ruler's supreme authority was to 
achieve more security. And in this re- 
gard, the territorial state had some 
success. By augmenting its own power 
and refusing to acknowledge any higher 
authority, the state originally did bring 
security to its own defined territory and 
inhabitants. In effect, its territory be- 
came impermeable. Even in the eco- 
nomic realm everything was done to 
further the exclusiveness of the state. 
Dependence was undesirable, so each 
state in the 16th, 17th and 18th centu- 
ries strove for self-sufficiency, an excess 
of exports over imports in trade and the 
accumulation of gold holdings. The 
colonial acquisitions of this imperial 
epoch were sought because they fur- 
nished supplies of raw materials re- 
quired by the mother country and 
absorbed surplus products available 
from it. Thus the state, in both the 
political and economic spheres, fol- 
lowed a policy of exclusiveness. 

But certain fundamental forces 
worked gradually to defeat this policy 
of exclusiveness. Under the impact of 
the industrial and communications revo- 
lutions, states became interdependent, 
their self-sufficiency destroyed by the 
vastly increased production and circula- 
tion of goods, greater specialization, and 
higher standards of living. The main- 
tenance of prosperity within the state 
became hostage to economic move- 
ments over which the state could exer- 
cise little control. A single international 
economy had come into being; no state 
was immune from the influences 
exerted by that economy, and pros- 
perity was indivisible. Nor has the state 
been able to insure the security of those 
under its jurisdiction. Thermonuclear 
weapons combined with accurate de- 
livery systems have shattered the state's 
impenetrability. Territorial demarca- 



154 



tions and defensive measures afford no 
effective barriers against attack; the 
state no longer is invulnerable. 

For these reasons, many observers of 
the international scene argue that the 
nation-state, like the political units that 
preceded it, is in decline, headed for 
inevitable demise. Left to its own re- 
sources, the state just does not have the 
capacity to produce the requisite se- 
curity and welfare. Some wider political 
unit, it is argued, is called for in the face 
of such great changes. Yet, despite these 
syndromes of a fatal disease, it is one of 
those extraordinary paradoxes that the 
nation-state system at the same time 
exhibits great vitality, as its rapidly 
growing membership attests. National- 
ism would still appear to be the most 
powerful current in international 
society, responsible for the emergence 
of more than forty nation-states in the 
past two decades alone. To the peoples 
of these newly independent countries, 
there is no higher value than their 
hard-won sovereignty. In the older 
nation-states, it is ture, extreme na- 
tionalism has lost some of its appeal as a 
result of bitter experience, prompting 
some of them to move beyond the 
exclusive national grouping into a wider 
society, as in the European Coal and 
Steel Community and the European 
Economic Community. But no one 
would claim, even within these Euro- 
pean states, that nationalism has ceased 
to be a potent force. 

How has the nation-state system 
been able to endure for so long if the 
foregoing description of anarchy, 
chronic instability, and collective in- 
security is accurate? The answer can be 
found in the operation of the balance of 
power. With all of its shortcomings, no 
other mechanism has functioned so well 
in restraining the unbridled quest for 
power by nation-states. As in the Greek 
city-state world so in the nation-state 
community, would-be dominators of 
that community have met determined— 
and combined— resistance from those 



states imperiled by hegemonial ambi- 
tions. And all thrusts for extensive 
power over neighboring countries have 
eventually been frustrated by that 
massing of counterpower which is the 
essence of the balancing machinery. 
Whether it was a Philip II, Louis XIV, 
Napoleon, Kaiser Wilhelm II, Hitler or 
Stalin, each met failure in reaching his 
goal. 

The attitude of the United States 
toward the balance of power has altered 
to fit its role in world affairs. During 
our long isolation from international 
politics, made possible by geographical 
factors and a European-maintained 
equilibrium, the American view was one 
of suspicion and distaste for the balance 
of power, as if it were not an inevitable 
corollary of the nation-state system. 
Even involvement in World War I did 
not change that view. According to 
President Wilson, his voluntary associa- 
tion of states, representing a concert of 
organized power, would do away with 
entangling alliances and competition for 
power. It took World War II and its 
aftermath, however, to convince the 
United States that there was no alterna- 
tive to participating in the balancing 
process. The Soviet Union by its blatant 
attempt to change the postwar distribu- 
tion of power in its favor, forced the 
United States to employ its considerable 
strength as a counterweight. Reduction 
in the number of truly major powers to 
two has in no sense destroyed the 
balancing machinery. Wherever there are 
two or more autonomous forces, the 
balancing operation will take place. Ad- 
mittedly the balance of power worked 
best when there were six or eight states 
of roughly equal strength, with no single 
one strong enough to dominate the 
others and uncertainty as to what the 
alliance groupings might be. But today 
the greater inflexibility implicit in a 
direct confrontation of two super- 
powers is offset by the "balance of 
terror," the inability in the interests of 
survival for either great power to resort 



155 



to total war. To meet the Soviet chal- 
lenge to the balance of power, the 
United States has used traditional de- 
vices, constructing an intricate complex 
of alliances and a great military estab- 
lishment. It would appear then that as 
long as the nation-state system survives, 
knowledge of the balance of power and 
skill in making it function are essential. 

Thus far we have discussed divisions 
in international society. Are there co- 
hesive forces present, binding the states 
of that society together? As already 
mentioned, a world community has 
developed gradually over the past 
several centuries, and markedly so since 
1900. It is commonplace today to say 
that the world has been made one, 
brought together by the scientific, tech- 
nological, and industrial revolutions. 
But the degree of political integration 
achieved has been comparatively small. 
This is not to say that progress in the 
evolution of a more closely knit society 
has not occurred. It has been outpaced, 
however, by the high degree of integra- 
tion so typical of the national society, 
overshadowing and even threatening the 
very real gains made in the international 
community. 

One has only to consider, for ex- 
ample, the various organs of the United 
Nations. The Security Council has been 
given primary responsibility for main- 
taining peace. But it has not been able 
to discharge this function when the 
superpowers, the United States and the 
Soviet Union, have been at loggerheads. 
It has no preponderant force to bring to 
bear in the absence of agreement be- 
tween the superpowers and can be 
paralyzed by use of the veto. Still, we 
should not forget that permanent peace- 
keeping machinery has been an inven- 
tion of quite recent origin. And the 
same thing can be said about the Gen- 
eral Assembly with its quasi-legislative 
powers as well as the judicial agency, 
the International Court of Justice. 
Neither of these are effective govern- 
mental organs in the same sense that 



legislative and judicial bodies are within 
the national society. Nor does the Secre- 
tariat of the United Nations have any- 
thing like the power of the executive 
branch in the nation-state. Nevertheless, 
rudimentary though these institutions 
may be, however restricted their 
strength, they have demonstrated their 
value in the handling of many interna- 
tional conflicts. Moreover, there is the 
hope that out of the experience 
acquired in operating these international 
organs, they will be endowed over time 
by their creators, the nation-states, with 
increasing power and responsibilities. 
After all, though the nation-state system 
is more than 450 years old, only in the 
past fifty years have there been any 
experiments in building permanent 
international government. It is far too 
early to dismiss these experiments in 
limiting the struggle for power as in- 
effectual. Until recently men were pri- 
marily concerned with devoting their 
full energies to their own nation-states; 
creation of a more stable international 
order tended to be neglected. 

Today, the necessity for such an 
order is more pressing. Some see in the 
universal fear of annihilation an irre- 
sistible impetus driving men to erect a 
supranational government capable of 
regulating relations between states. This 
I regard as too sanguine a view. Men 
often do not act in their own best 
interests; men and nations cannot be 
presumed to be so rational that because 
destruction confronts them they will 
avoid it. Besides, the pull of nationalism 
remains so strong that any world gov- 
ernment, no matter how compelling or 
logical the need for it may be, seems a 
long way off. Those essential elements 
of consensus upon which a lasting com- 
munity is built just do not exist. 

There are also many who believe that 
the way to world peace is through the 
development of world law. But if Pro- 
fessor Quincy Wright's analysis of the 
evolution of political society is correct, 
this is to put the cart before the horse. 



156 



Arguing by analogy to the domestic 
order, Professor Wright brings out that 
the first step, preliminary to the later 
growth of effective law, the legislative 
process, and administrative organs, is 
the bringing of peace to the society in 
question. Generally such peace has been 
imposed by overwhelming power. In the 
larger framework of international 
society, is any state capable of domi- 
nating the globe? Not even a super- 
power, the United States or Russia, 
seems likely to have that capacity or at 
least the ability to maintain the peace 
once established. Despite the instru- 
ments of control now available to a 
universal imperial power, the world is 
too large, too diversified to be ruled 
from any single center for long. The 
Soviet Union, bent on carrying through 
its design for world state, has run into 
serious difficulties already trying to 
dominate the narrow sphere of Eastern 
Europe. Moreover, its role as undisputed 
interpreter of Marxist doctrine has come 
under sharp attack within a communist 
camp torn by centrifugal tendencies. As 
for the United States, its democratic 
ideology, its commitment to the self- 
determination of peoples peculiarly un- 
fits it for the task of world empire- 
building. 

A review, such as we have made here, 
of the characteristics of the nation-state 
system might easily arouse gloom about 
its prospects. One is almost prompted to 
say, as does the title of an English 
musical play, "Stop the world, I want to 
get off." For international society does 
not appear headed toward any immi- 
nent and fundamental change. This 
means then that so long as there is a 
pluralistic society composed of sover- 
eign units, there will be wide divergen- 
cies of interests and deep-rooted con- 



flicts whose resolutions will not be 
easily found. Some broader political 
unit than the individual nation-state 
seems essential if men are to find the 
security and prosperity they seek. The 
creation of such a political unit or units 
would not represent a radical departure 
from the existing state-system. More- 
over, there is a device at hand which 
might be used, a device particularly 
familiar to Americans and one which 
they have put to work with remarkable 
results in their own country. This is, of 
course, federalism, the creation of a 
central government of limited powers to 
reap the advantages of unity and, at the 
same time, retention of the political 
identity of the component states in 
order to preserve a desirable diversity. 
Transferred to the international scene, 
federalism could be adopted by those 
states of, let us say, the Atlantic Com- 
munity, building upon shared values, 
beliefs and experience. The foundation 
stones for an edifice of federalism al- 
ready exist in such notable advances as 
the European Economic Community, 
the North Atlantic Treaty Organization, 
and the Organization for Economic 
Cooperation and Development. It would 
be foolish to minimize the obstacles in 
building this federal system. Such a 
venture calls for unusual vision, initia- 
tive and political genius, qualities always 
in scarce supply. What is more, time is 
running out. There are two further 
alternatives, but one seems impractical 
and the second grim. As we have 
pointed out before, creation of a world 
government is unlikely. On the other 
hand, continuation of the nation-state 
society along its present highly differen- 
tiated course impels us to move beyond 
the national community toward federa- 
tion—and soon. 



Y 



157 



ASPECTS OF INTERNATIONAL LAW 



AFFECTING THE NAVAL COMMANDER 



Geoffrey E. Carlisle 



Today the United States faces grave 
international problems of defense 
against an ideology which desires to 
enslave the free peoples of the world. 
To further that defense we have entered 
into international alliances and pacts 
which far surpass any similar peacetime 
alliances that the world has ever known. 
We have thrown our national resources 
into the fight. It is an extremely am- 
bitious program and one in which the 
United States, as prime mover, carries 
an overwhelming burden of responsi- 
bility, a responsibility which must be 
properly assumed if the program is to be 
successful and its aims attained. Success 
will depend upon the efforts of every 
United States national who may be 
thrown into contact with our friends 
abroad. 

Some of you may feel that interna- 
tional relations are of small concern to 
you. In order to disabuse you of this 
idea I want to take a couple of minutes 
to quote from Navy Regulations, 1948. 

Section 0505 reads: 

1. In the event of war between 
nations with which the United 
States is at peace, a commander 
shall observe, and require his com- 
mand to observe, the principles of 
international law. He shall make 
every effort consistent with those 



principles to preserve and protect 
the lives and property of citizens 
of the United States wherever 
situated. 

2. When the United States is at 
war he shall observe and require 
his command to observe, the prin- 
ciples of international law and the 
rules of human warfare. He shall 
respect the rights of neutrals as 
prescribed by international law 
and by pertinent provisions of 
treaties, and shall exact a like 
observance from neutrals. 

Section 0620 reads: 

So far as lies within his power, 
acting in conformity with interna- 
tional law and treaty obligations, 
the senior officer present shall 
protect all commercial vessels and 
aircraft of the United States in 
their lawful occupations, and shall 
advance the commercial interests 
of his country. 

Section 1214 reads: 

All persons in the naval service, 
in their relations with foreign na- 
tions, and with the governments 
or agents thereof, shall conform 
to international law and to the 
precedents established by the 
United States in such relations. 



158 



Section 0613 reads: 

On occasions where injury to 
the United States or to citizens 
thereof is committed or threat- 
ened, in violation of the principles 
of international law or treaty 
rights, the senior officer present 
shall consult with the diplomatic 
or consular representatives of the 
United States, if possible, and 
shall take such action as the 
gravity of the situation demands. 
The responsibility for any action 
taken by a naval force, however, 
rests wholly upon the senior 
officer present. He shall immedi- 
ately report all the facts to the 
Secretary of the Navy. 
The above regulations impose upon 
the commander far-reaching responsi- 
bilities and duties in the field of interna- 
tional law, responsibilities he may not 
escape. To carry out those responsi- 
bilities, considerable on hand knowledge 
of the subject is required. It is not 
practical for most commanders to be 
experts in this field nor is it possible for 
his staff legal officer to have on board 
or access to an adequate library on the 
subject There are, however, certain 
general principles and areas with which 
he can be familiar and which will 
furnish general temporary guidance 
until exact advice may be obtained. I 
will discuss some of these with you. 

If this introduction has impressed 
you with the importance of your func- 
tion in international law two questions 
have probably occurred to you. They 
are: 

1. What, in outline, are the im- 
portant danger points and aids with 
which I generally should be familiar? 

2. Where can I supplement most 
readily my present knowledge and 
familiarize myself with the details of 
these matters? 

I shall answer the latter question 
first. Here at the Naval War College two 
excellent methods are available. (1) In 
the regular academic program you are 



now following and (2) through the 
correspondence course service available 
to all officers. Both services are staffed 
by experts and the curriculum is care- 
fully thought out and designed to meet 
your needs. They form the best method 
of securing the necessary basic knowl- 
edge. Additional knowledge may, of 
course, be secured through reading and 
experience. 

In reply to the first question it seems 
to me that the following matters are of 
primary importance although not neces- 
sarily in the order named: 

1. Criminal jurisdiction over our per- 
sonnel in foreign countries. 

2. Administration of foreign claims. 

3. Contact with foreign flag vessels 
on the high seas, questions of blockade 
and violations of foreign territory. 

4. Naval responsibilities in U.S. terri- 
torial waters and contiguous zones. 

5. General administration of bases 
located in foreign countries. 

To understand the importance that I 
place on these matters it is necessary to 
understand the attitude of the foreign 
nations involved. The matter is not a 
simple one. It involves problems of 
national pride and economics as well as 
problems of defense. Many of our citi- 
zens are inclined to take the position 
that we are acting for the defense of the 
free world and that by our unselfish 
contributions of men and money we 
should be permitted to have pretty 
much our own way in foreign countries. 
That we should be free of restrictions 
and other petty limitations which seem 
subordinate to the compelling necessity 
for establishing an adequate defense 
system. The attitude is, "We're doing 
them a favor, why should they be less 
than fully cooperative?" Unfortunately 
the attitude of our allies does not 
permit such an approach. Almost with- 
out exception their attitude is that by 
permitting the establishment of bases 
within their territories they are doing 
the United States a favor. This attitude 
of governments accurately reflects the 



159 



attitude of their citizens and is under- 
standable when the factors of local 
administration are considered. 

I do not wish to argue the merits of 
either position. The proper attitude is, 
of course, a realization by both parties 
of the difficulties involved and a firm 
resolution by cognizant persons to 
eliminate as much friction as possible. 

Proceeding now to a general discus- 
sion of the above-mentioned items. 

CRIMINAL J URISDICTION 

The stationing of large numbers of 
troops within the boundaries of a 
friendly foreign nation in peace time is 
an idea entirely new to the world 
community. It immediately raises seri- 
ous problems of criminal jurisdiction 
because of two equally well-established 
principles of international law. The first 
is the theory of sovereignty which gives 
to a state exclusive jurisdiction over all 
persons within its boundaries. The 
second is the rule that a State has 
exclusive jurisdiction over its armed 
forces. The North Atlantic Treaty na- 
tions recognized the clash between these 
two principles and recognized the neces- 
sity for abandoning the traditional mili- 
tary concept of exclusive jurisdiction if 
the sovereign dignity of the host State 
was to be maintained. 

In frank recognition of this problem 
the signatories to the North Atlantic 
Treaty have agreed to share jurisdiction 
over military forces and civilian com- 
ponents of one nation stationed within 
the boundaries of other signatories to 
the treaty. The formula established is 
contained in Article VII of the NATO 
Status of Forces Agreement. Without 
reading the Article to you its provisions 
are generally as follows: 

1. Subject to certain enumerated 
provisions the sending state retains the 
authority to exercise jurisdiction over 
its people concurrently with the au- 
thorities of the receiving state. In other 
words— the principle of equal and 



concurrent jurisdiction is established. 

2. Specific provisions governing the 
exercise of this jurisdiction are as fol- 
lows: 

a. The sending state has exclusive 
jurisdiction over offenses punishable 
under its laws, including security of- 
fenses, but not under the laws of the 
receiving state. (Security offenses in- 
clude: treason, espionage, sabotage and 
violation of law relating to official 
secrets.) 

b. The receiving state has exclu- 
sive jurisdiction over offenses punish- 
able under its laws but not under the 
laws of the sending state. 

3. In all other cases the jurisdiction 
is concurrrent and subject to the follow- 
ing rules: 

a. The sending state has primary 
jurisdiction over offenses against its 
property or security offenses, offenses 
solely against the property or person of 
another member of the force or civilian 
component and offenses arising out of 
an act or omission done in the per- 
formance of official duty. 

b. The receiving state has the 
primary authority to exercise jurisdic- 
tion in all other cases. 

4. Provision is made for waiver of 
jurisdiction by either of the parties. 

Thus you can see that stripped of its 
legalistic trimmings the NATO Status of 
Forces formula for exercise of jurisdic- 
tion lodges with the receiving state the 
primary right to exercise jurisdiction 
over our people in the great majority of 
cases and in almost all cases which may 
cause serious friction between the two 
countries. Such cases, for example, as 
armed robbery, murder, rape, assault 
and other offenses of the type com- 
monly committed by members of the 
military while mixing with civilian 
populations. 

This formula has been adopted by 
our government in bilateral negotiations 
with several countries and you may 
expect that it will be the standard in 
most foreign countries you will visit. I 



160 



say this even though there are and will 
be exceptions to it. In some countries 
we have found it convenient to secure 
exclusive jurisdiction over our people 
and have done so because, from our 
standpoint, it is the most practical 
method of operation. In other coun- 
tries, we do not even have concurrent 
jurisdiction over offenses against the 
laws of the host state. This is rare and is 
a situation we will make every effort to 
alter. It exists under agreement previ- 
ously negotiated between our country 
and the host country and which we 
hope will be altered by having the 
NATO Status of Forces Agreement 
come into effect if it is not altered 
earlier as the result of bilateral negotia- 
tions. 

I do not wish to leave you with the 
impression that our people always will 
be subject to the primary criminal juris- 
diction of the host state. We shall 
continue to seek exclusive jurisdiction 
in bilateral negotiations. However, the 
trend and precedent established by the 
NATO formula are such that we may 
expect a reduction in our rights to 
exercise it even in countries where it is 
now enjoyed. Nor do I wish to leave 
you with the idea that you may rely in 
the NATO formula for all North Atlan- 
tic Treaty countries. In many of them 
we are still operating under previous 
agreements of such a varied nature as to 
prohibit their being the subject of gen- 
eral discussion. 



commander possesses a very potent 
weapon which was given to him by the 
Foreign Claims Act. This Act, passed in 
1942, was, and I quote, "for the pur- 
pose of promoting and maintaining 
friendly relations by the prompt settle- 
ment of meritorious claims in foreign 
countries." Under it the field com- 
mander may consider and settle claims 
up to $2500. The Secretary of the Navy 
may settle those between $2500 and 
$5000 and may certify claims in excess 
of $5000 to Congress for consideration. 

Under the Act you can scarcely 
conceive of an act of a member of the 
armed forces resulting in injury or 
damages to an inhabitant of a foreign 
country or to his property which is not 
compensable. When properly used, this 
weapon alone will greatly increase the 
respect for our forces and will do much 
to still the clamor of local citizens who 
become outraged by such incidents. 
Most of them can understand the inci- 
dents having occurred in the first 
instance, but few can understand failure 
or delay in compensating the injured 
parties. You should be ever conscious of 
the availability of this procedure and its 
flexibility. 

Additional methods of settling claims 
arising incidental to our presence in 
foreign countries are established by the 
NATO Status of Forces Agreement and 
eventually will be available. They also 
are directed at easing friction between 
the two countries concerned. 



ADMINISTRATION OF 
FOREIGN CLAIMS 

One of the most serious sources of 
friction arises from the behavior of our 
people abroad or from accidental in- 
juries which occur from noncombatant 
operations of our forces. Cases of 
drunken driving resulting in deaths of 
local citizens or the crash of an airplane 
in a populated area to mention two 
fairly common occurrences. 

To combat this friction, the naval 



CONTACT WITH FOREIGN FLAG 

VESSELS ON THE HIGH SEAS, 

QUESTIONS OF BLOCKADE 

AND VIOLATIONS OF 

FOREIGN TERRITORY. 

Naval commanders or their represen- 
tatives arc frequently in contact with 
foreign flag vessels on the high seas. The 
existence of a state of war gives rise to 
certain well-recognized belligerent rights 
which arc in contravention to the tradi- 
tional concept of the "freedom of the 



161 









seas." One of these is the privilege of 
visiting and searching foreign flag mer- 
chant vessels to determine if they are 
carrying contraband. In doing this the 
naval commander is exercising a right 
which contributes to eventual victory, 
but also he is interfering with the 
commerce of nations which are neutral 
to the struggle. The right to search is 
given by international law; the methods 
to be followed are strictly established 
and must be followed if the searching 
vessel is to avoid offense to the foreign 
flag and the possibility of bringing her 
into the war on the side of the opposing 
power. 

Another situation in which naval 
commanders or their representatives are 
frequently in contact with foreign flags 
is in blockade situations where all com- 
merce is denied entry to the ports or 
parts of the ports of an opposing belli- 
gerent This requires the stopping and 
turning away of neutral vessels. Here 
too, definite rules are established by 
international law and must be strictly 
followed if offense is to be avoided. 
Other than the possibility of seriously 
offending a neutral is the possibility of 
subjecting the United States to damage 
claims by reason of the spoilage of cargo 
or delay in delivery. 

In both of these situations the cap- 
tain obviously must be familiar with the 
applicable rules and regulations. He 
must know how to make a visit and 
search and what to do if contraband is 
discovered. Similary, he must know why 
a blockade must be effective and about 
such matters as pursuit and the effect of 
leaving station. 

Rules for these problems are con- 
tained in a volume called "instructions 
for the Navy of the United States 
Governing Maritime and Aerial War- 
fare," which will be replaced with a 
revised and modernized volume some- 
time this year. 

An additional problem is raised by 
the violation of foreign territories by 
our ships or aircraft. Such incidents, 



aside from the friction caused, may be 
extremely expensive. For example, the 
Hungarian incident of a year ago cost 
the United States $123,000 in ransom 
for four aviators forced down in Hun- 
gary. Incidents of this type may only be 
avoided by proper indoctrination of 
personnel and assiduous care in ap- 
proaching such areas and an understand- 
ing of the extent of foreign territory 
including territorial waters. 

NAVAL RESPONSIBILITIES IN 

TERRITORIAL WATERS AND 

CONTIGUOUS ZONES 

This subject is one of great impor- 
tance to the naval commander. Impor- 
tant because the performance of the 
Navy's primary mission of defense may 
in some degree conflict with the rights 
of citizens of the United States as well 
as those of foreign nations. 

By definition territorial waters are 
the belt of sea surrounding the territory 
of the state, its territories and posses- 
sions. The width of that belt has been 
the subject of continuing debate among 
the states of the world and as recently 
as last August was the subject of a 
world-wide convention. The United 
States traditionally has adhered to the 
position that this belt of water is three 
miles wide. By adopting this position it 
has been in concurrence with most of 
the states of the world, but other states 
have advocated an increase of the width 
to one more in keeping with the con- 
cepts of modern defense. Historically, 
the width was established as the range 
of shore defense batteries; this basis 
alone obviously is archaic. To understand 
the importance of territorial waters, it is 
necessary to realize that within these 
waters a state is considered to have 
essentially the same powers of jurisdic- 
tion and control and regulation that it 
exercises over land areas within its 
boundaries. There are many reasons 
advanced as to why the United States 
should change its position and advocate 



162 



an increase of the width of territorial 
waters. It seems almost self-evident that 
present weapons would support this 
position and that we never should per- 
mit a potential enemy to approach so 
close without serious challenge. There 
are, however, other considerations 
which override these basic self-evident 
factors. Consider, for example, the diffi- 
culty and cost of patrolling a much 
more extensive area, or, and this also is 
important from a defense or war stand- 
point, the limiting effect upon our 
operations if we were to recognize a 
considerably broader belt as applied to 
other states. Assume, for example, a 
belt 12 miles wide, and then consider 
the difficulties of exercising the well- 
recognized belligerent right of visit and 
search of neutral vessels in time of war 
outside their territorial waters. An addi- 
tional consideration is the restrictions 
placed upon our citizens in the fishing 
industry if forced to fish further from 
shore than three miles or come under 
the regulations of the foreign state. I do 
not advocate either view of the prob- 
lem, but merely remark on them as a 
matter of introduction. 

The Navy normally is charged in 
wartime with the responsibility for 
patrolling and enforcing regulations for 
the control of vessels in territorial 
waters. While primarily exercised by 
vessels, it also involves the use of air- 
craft. In peacetime the responsibility 
rests with the Coast Guard. 

The degree of sovereignty which a 
state may exercise over these territorial 
waters has been the subject of an 
abundance of contradictory writing by 
authorities and further has been compli- 
cated by the conflicting practice of the 
various world states. It appears that the 
most acceptable and workable rule 
would restrict the exercise of sover- 
eignty to that necessary to ensure 
security and defense and the protection 
of its interests in territorial waters with- 
out excluding the peaceful navigation of 
the area by foreign vessels. Note that it 



is only within these waters that the 
uncontested exercise of sovereignty has 
been recognized. I think as naval com- 
manders you should realize that the 
exercise of control within these waters 
is subject to much less criticism than in 
the additional zones I shall discuss. 

Areas beyond the territorial waters 
are part of the high seas and normally 
are not subject to the control or sover- 
eignty of any state. However, as a 
matter of self-defense, large areas of the 
high seas frequently have been desig- 
nated as "Maritime Control Areas" and 
control exercised over them. There 
seems to be no substantial argument 
with the proposition that a state is 
entitled to preserve the integrity of its 
personality as a state. In the exercise of 
this right of self-defense it is entitled to 
take such measures as are necessary. 
These measures are subject only to the 
test of reasonableness, but no nation 
can long maintain such control legally if 
it is unreasonable under the circum- 
stances. The right of self-defense does 
permit the establishment of such zones 
and control under certain regulations. 
Of importance to the naval commander 
is the fact that in his exercise of the 
powers conferred upon him in relation 
to such zones he must be ever-conscious 
of the scrutiny of foreign states and 
assiduously must prevent his acts or 
those of his subordinates from violating 
this reasonableness test. 

Another type of contiguous zone is 
the "Defensive Sea Area." As the name 
implies, it is a zone established for 
defense around land areas of the state. 
It may be restricted to the territorial 
waters but also may extend beyond 
them. In mode of operation, it is like a 
"Maritime Control Area" with regula- 
tions established for its administration. 
The naval commander is responsible for 
the enforcement of those regulations 
and likewise must be conscious of the 
possibility of his vessels violating defen- 
sive sea areas established by oilier 
nations. 



163 



GENERAL ADMINISTRATION 

Under this general heading come 
such things as cooperation and liaison 
with local foreign authorities. Internal 
administration of a ship is much the 
same abroad as it is in the United States. 
But administration of a naval base 
abroad under the provisions of the 
North Atlantic or other treaties may 
differ considerably from that of a base 
in this country. Language barriers and 
the necessity of conforming to local 
laws of industrial relations and labor, 
currency restrictions, use of military 
payment certificates, potential black- 
market activities, customs and imports, 
hiring of indigenous labor, passive and 
active hostility of local populations to 
the presence of U.S. personnel and 
many other items complicate the gen- 
eral administration of the foreign base. 

Most of these things are provided for 
under technical bilateral agreements. Be- 
cause of their seriousness, all of them 
require a healthy respect if our mission 
is to be successful. All of them require 
knowledge on the part of the naval 
commander. 

In administering these problems 
there is no substitute for excellent 
relations with local authorities. The 
naval commander who insures that all 
things possible are done to improve 
those relations will not hit serious snags 
in his international relations. Problems 
which could result in an exchange of 
diplomatic notes often may be avoided 
entirely if cordial relations are estab- 
lished between the Commander and the 
Mayor of the town— the Legal Officer 
and the local judiciary— and the Provost 
Marshall and the local Chief of Police. 
There is no substitute for good public 
relations abroad as well as in the United 
States. 

Having stressed a few of the spots in 
which you may anticipate trouble, I 
shall now mention a few cases, in 
illustration, that have been in our office. 

1. A little over a year ago, a sailor 



attached to the Naval Base at Port 
Lyautey, French Morocco, went on a 
drinking binge. During its course, he 
drove his vehicle in such a manner that 
two people were struck and killed and 
another seriously injured. We had been 
exercising what was in effect concurrent 
jurisdiction and had been enjoying a 
local arrangement whereby the local 
authorities would surrender our persons 
to us for trial upon receipt of a simple 
request from the Base Commander. This 
particular case was so flagrantly offen- 
sive to local citizens that the local 
authorities refused to permit us to 
exercise jurisdiction over him and 
undertook his trial and punishment. The 
entire situation turned into a comedy of 
errors. On one hand the Navy was 
insistent on his return, even though not 
legally entitled to him; on the other 
hand, the French were adamant in their 
refusal to surrender him. The final 
solution was even more farcial. The 
French court finally tried and convicted 
him, sentenced him to pay a $520 fine 
and to be confined for four months, and 
then suspended the confinement. 

Clearly, the outcome was a mis- 
carriage of justice; one which would not 
have happened if we had been entitled 
either to primary or exclusive jurisdic- 
tion within that area. 

2. An officer stationed in a foreign 
country as a part of the Military Mission 
accidentally struck a child with a small 
stone, resulting in a slight abrasion to 
his scalp. In the particular country we 
have no jurisdictional rights over our 
people for violation of local law and are 
bound to permit our people to be tried 
by local courts in accordance with their 
rules of evidence. This offense started as 
a misdemeanor in the lowest court but, 
as the result of political manipulations 
of the child's father for financial gain, 
was successively removed to higher 
courts and the officer charged with 
"putting a life in danger" and subject to 
a minimum punishment of one year's 
confinement in a local penitentiary. 



164 



You may be sure that many foreign jails 
do not approach the standards of our 
worst in cleanliness. You also might be 
interested to know that their local 
judicial system does not permit the 
defendant to introduce expert witnesses 
or to cross-examine those produced by 
the state. This case illustrates two 
things: (1) the difficulties caused by 
lack of jurisdiction, and (2) a problem 
which might have been resolved quickly 
and promptly if handled under the 
Foreign Claims Act and the father 
placated. 

3. A sentry aboard one of our ships 
in a foreign harbor discerned a native 
rowing rapidly away from another ship 
in the nest and heard shouts from 
persons aboard that ship. The sentry 
ordered the native to halt and repeated 
the order several times. When the native 
did not halt, he fired a shot, intending it 
to pass over the head of the man in the 
boat. Instead it passed through his chest 
and resulted in immediate death. When 
the matter was brought to our attention 
in Washington, it had been the subject 
of much comment in the local press 
and, as the result of the protests of the 
victim's dependents, had been the sub- 
ject of a diplomatic note to our govern- 
ment demanding immediate indemnifi- 
cation. From the information received, 
it appeared that the Navy had been 
waiting for the results of a court of 
inquiry before taking any steps to con- 
tact the victim's dependents. At that 
point the demands were well under the 
$2500 limit imposed on the local Com- 
mander under the Foreign Claims Act. 
While the sentry was absolved from 
wrong-doing, the Judge Advocate Gen- 
eral ruled that the force used was 
excessive and the matter cognizable 
under the Act. The same determination 
could have been made in the field. This 
is an example of an incident where 
prompt action under the Foreign Claims 
Act would have prevented considerable 
local comment and ill will. 

4. Each foreign country has local 



labor laws which must either be com- 
plied with in the hiring of indigenous 
labor or must be avoided by govern- 
mental agreement. Sometimes it is diffi- 
cult, if not illegal, for us to comply with 
those laws. For example, local laws in 
the United Kingdom requires the em- 
ployer to make a regular contribution to 
the United Kingdom's Health Insurance 
Fund. It thus would follow that the 
United States, as an employer of United 
Kingdom nationals, would be required 
by their laws to make this contribution. 
The matter is complicated by United 
States law. Under currently effective 
statutes, the Comptroller General has 
ruled that: In the absence of a statute or 
treaty to the contrary, payroll deduc- 
tions may not be made pursuant to 
foreign social security laws from the 
salaries of indigenous employees nor 
may employer contributions be made 
by the Navy Department for such em- 
ployees under such laws. In the United 
Kingdom we have had an express agree- 
ment exempting the United States from 
such payments. As this authority is 
temporary in nature, we must secure 
legislation which would permit such 
payments or be sure that provisions for 
them are incorporated into future agree- 
ments between our governments. 

The point of importance to you is an 
understanding that such payments 
should be considered carefully and 
evaluated under current agreements or 
laws in order to avoid paying un- 
reimbursable amounts and also so that 
we can explain to foreign governments 
our inability to make such payments. 
New agreements ordinarily will contain 
a provision relative to this matter and 
will provide for their payment or 
avoidance. 

5. Taxes encountered in foreign 
countries frequently are quite different 
from those imposed by our State and 
Federal Governments in this country. 
For example, one foreign government 
has a tax imposed on the tenant which 
depends upon the number of doors and 



165 



windows in the dwelling, coupled with 
the size of the living area involved. To 
my knowledge, we have no similar tax 
in the United States. Other taxes in- 
clude personal property and road taxes. 
All of these matters are important be- 
cause they reduce— at least indirectly— 
the pay of personnel. They also deter- 
mine, in part, the attractiveness of 
foreign duty for personnel. They are all 
subject to governmental agreement and 
wherever possible will be eliminated. 
Their importance to you is is primarily 
one of knowing that such taxes may 
have to be paid and that it is necessary 
to make a proper determination of this 
matter in order that personnel may be 
advised correctly. 

6. Jurisdiction over civilian per- 
sonnel as exercised under the NATO 
and other agreements and as a result of 
supporting operations raises the respon- 
sibility for trying civilians by courts- 
martial or other appropriate military 
tribunals. This responsibility may arise 
on any leased base area or within the 
Military Sea Transportation Service. 
Under the Uniform Code of Military 
Justice (Articles 2(10, 11 and 12)), 
appropriate Commanders may try 
civilian personnel employed by, serving 
with, or accompanying the armed 
forces. 

Trial of civilians is not unknown to 
the Navy and little trouble in establish- 
ing proper tribunals and effecting the 
trials is anticipated. 

The problem as it may affect you is 
whether, in a particular case, a civilian is 
subject to your authority and trial. 

A recent case in our office involved 
the problem of the trial of civilian 
employees serving aboard MSTS vessels. 
As you probably know the Military Sea 
Transportation Service is made up of 
various types of vessels— some are 
owned by the Government— others are 
chartered on a space or bareboat basis. 
The Judge Advocate General was re- 
cently of the opinion with regard to 
MSTS vessels that those civilian per- 



sonnel employed on Government-owned 
vessels or vessels chartered on a bare- 
boat basis and integrated in the MSTS 
fleet were subject to court-martial juris- 
diction when the vessels were operating 
outside the continental United States. 
He was of the further opinion that 
personnel of vessels owned by com- 
mercial steamship companies under voy- 
age or space charter were not suf- 
ficiently under military command to 
subject them to trial by court-martial 
unless they became integrated into a 
task force engaged in military opera- 
tions. 

You can understand from the above 
remarks that the solution of the prob- 
lems of the military commander in this 
regard well might depend upon the 
geographical location of the vessel and 
the mission to which it is committed. 

Exercise of jurisdiction depends also 
upon underlying agreements with the 
government within whose jurisdic- 
tion—outside the United States and off 
the high seas— the alleged crime occurs. 

It would be possible for me to 
multiply these examples almost ad in- 
finitum but no useful purpose would be 
served thereby. Enough has been said to 
indicate the concrete nature of the 
problems involved. 

CONCLUSION 

In conclusion let us sum up the 
message that I have tried to bring to 
you. 

I have taken for major treatment in 
this talk the problems which face Staff 
and Command Officers in foreign coun- 
tries and have tried to point out some of 
the more important areas of possible 
friction with which you will have to 
deal. 

I have said to you that some of these 
problems revolve around: 

1. Criminal jurisdiction in foreign 
countries. 

2. Administration of foreign claims. 

3. Contacts with foreign flag vessels 



166 



on the high seas as the result of block- 
ade and visit and search and the results 
of violation of foreign territory. 
I have discussed briefly: 

4. Naval responsibilities within con- 
tiguous zones. 

5. General administration of foreign 
bases 

and I have attempted to impress upon 



you the necessity for considerable on 
hand knowledge of the pertinent parts 
of international law and to point out 
some of the sources of information 
available. 

If I have accomplished this, I feel 
that I have done as much as time 
permits and that my visit with you has 
been successful. 



«F 



167 



INTRODUCTION TO INTERNATIONAL LAW 



AS IT PERTAINS TO THE NAVAL OFFICER 



Wilfred A. Hearn 



My subject is an introduction to 
international law as it pertains to the 
naval officer. My approach will be to 
introduce you in general fashion to 
some of the areas of concern to the 
naval officer to which the principles of 
international law apply. My aim is to 
stimulate your interest in the direction 
of the problems you will discuss during 
this study and, by example, demon- 
strate the importance of having stored 
in your arsenal of knowledge some of 
the principles of international law which 
you will need to know for decision- 
making purposes in the years ahead. 
Without attempting to list them in any 
order of importance, let me name a few 
of the problems of an international 
character which are current today: 

1. The tendency of states to claim 
an extension of sovereignty or jurisdic- 
tion over areas of the high seas. 

2. The right of visit and search of 
ships on the high seas. 

3. The proposed convention on re- 
turn of astronauts and space vehicles. 

4. The visits of nuclear ships to 
foreign ports. 

5. NATO Multilateral Force. 

6. Status of Forces Agreements. 



At first you might think that these 
are quite dissociated subjects, but there 
is a common thread which ties most of 
them together; that is, that two or more 
countries are trying to work out a 
solution to a problem, or a potential 
problem, of military interest. The tool 
that is being utilized is our subject- 
international law. 

Thus, the scope of the subject matter 
we are going to explore and study here 
is as broad as the world itself. Some 
problems are old, steeped with tradition 
and state practice of long standing, such 
as the law of the sea. Some are so new 
we deal in terms of analogy rather than 
precedent, such as the law of outer 
space and the law of inner space. Some 
are glamorous headline-makers. Many 
are resolved with little public notice. 



*- 



I am sure that some of you have 
asked yourselves: Why study inter- 
national law? What is its significance to 
me as a military officer? With the 
uniformed lawyers available in the mili- 
tary services, the political advisors 
assigned to major commands, and the 



168 



ready access to departmental head- 
quarters and the Department of State in 
Washington through modern communi- 
cations, why should we, as military 
officers, study or concern ourselves with 
the study of international law? Perhaps 
a good reason why you should, could be 
given by the Commanding Officer of the 
Hale who— while on patrol in the area of 
the Grand Banks some few years ago— 
received out of the blue an Operational 
Immediate ordering him to intercept 
and board a Russian trawler suspected 
of cutting the transatlantic cables. 

In reply to such a question, I would 
say that international law problems of 
military significance will become the 
ordinary bill-of-fare for many of you; 
and the more a military commander 
knows about the subject, the better his 
position to discharge his duties and 
responsibilities. Further, a commander 
would be hard pressed to request in- 
structions when confronted with a novel 
international situation unless he under- 
stood the legal implications and could 
recognize and evaluate the salient facts. 

Military officers, as a class, deal in 
the arena of public international law 
and international relations more than 
any group in government with the ex- 
ception of State Department personnel. 
Our commanders on foreign soil do so 
daily. The commander in Korea is 
operating under an international organi- 
zation, the United Nations, carrying out 
or enforcing an armistice or truce. If he 
is unfamiliar with its provisions, its 
implications, and its legal significance in 
the international community, he will be 
hard pressed to fulfill the responsibili- 
ties reposed upon him. The commander 
in Berlin must know the terms of the 
agreement under which he is garrisoned 
in Berlin and where the North Atlantic 
Treaty Organization fits into the scheme 
of things. How far can he go and still be 
within the agreement; how far may he 
permit the East Germans to go before 
they violate the terms of the agreement; 
and what would be the legal implica- 



tions of each of these situations? The 
commander at Guantanamo Bay, Cuba, 
must know the terms of the two treaties 
and the lease agreement between the 
United States and Cuba which govern 
our rights to the Naval Base at Guan- 
tanamo, in order not to give Castro any 
legal basis for abrogating these agree- 
ments. 

The commanding officer of any mili- 
tary activity stationed in a foreign coun- 
try must be familiar with the agree- 
ments under which he is operating, such 
as base rights and status of forces 
agreements. The commander at sea must 
know the rights and obligations with 
respect to international waters, terri- 
torial sea, and the rights of a man-of-war 
in foreign territorial seas and in foreign 
ports. The air commander must realize 
the legal significance of foreign bound- 
aries overflying foreign territory, and 
other rights obtained from foreign gov- 
ernments. These are all matters involv- 
ing international relations. 



Up to this point, I have been speak- 
ing in terms of generalities. But it is the 
specific cases and situations which have 
arisen in the past, and which may be 
expected to occur again in kind, that 
demonstrate the significance of interna- 
tional law to the naval officer and to 
military officers generally. As I men- 
tioned a few moments ago, some prob- 
lems are old and some are new. This 
brings to mind the case of the yacht 
Adventuress and the pilot boat Storm- 
along. The question presented was the 
right, in time of peace, of the vessels of 
one nation to visit and search vessels of 
another nation which are proceeding 
peacefully on the high seas between two 
foreign ports. Factually, the Adven- 
turess and Stormalong were two U.S. 
registered merchant vessels, flying the 
U.S. flag, proceeding between the ports 
of two friendly countries in the Carib- 
bean. There was some evidence that a 



169 



third unfriendly Caribbean country 
might attempt to visit and search these 
ships. A U.S. Navy destroyer was dis- 
patched to the scene with orders to 
prevent any such action. 

These orders were given under the 
principle of international law that mer- 
chant vessels of one country, when 
proceeding peacefully in pursuit of com- 
merce, are not subject to visit and 
search on the high seas by officials of 
another country. An interesting thing 
about this case is that the correspond- 
ence relating to the Adventuress and 
Stormalong was found among some old 
files in my office. The advice to the 
Chief of Naval Operations from the 
Judge Advocate General was dated April 
15, 1936. The reason I cite this incident 
is that it might well have happened 
yesterday in view of our present rela- 
tions with Cuba. It might well happen 
again tomorrow. When it happens next, 
by happenstance, you might be the 
commanding officer of the ship in- 
volved. 

This question of the right of warships 
to visit and search merchant vessels of 
another country on the high seas has 
arisen in various forms over the years. 
The Santa Maria incident, in 1961, was 
such a case. As you may recall, a group 
of Portuguese rebels under command of 
Captain Henrique Galvao in January 
1961 took command by force of the 
Santa Maria as she was departing 
Curacao on a return voyage to Lisbon. 
There were 600 passengers aboard, in- 
cluding 42 Americans. Captain Galvao 
professed to be seeking the overthrow 
of the Portuguese Government. At the 
request of the Portuguese Government, 
U.S. naval forces undertook the re- 
covery of the vessel. Action included 
locating the Santa Maria and keeping 
her under surveillance for several days. 
It included negotiations on the high seas 
between Rear Admiral Allen Smith, Jr., 
and Captain Galvao, with the result that 
the Santa Maria was brought into Recife 
by Galvao, the passengers were dis- 



charged, and the ship was returned to 
the Government of Portugal. This is 
what our actions were designed to bring 
about, and they worked. 

A similar case was the seizure of the 
Venezuelan freighter Anzoategue in 
February 1963 by left-wing guerrillas 
who were opposed to the government of 
Venezuelan President Betancourt. The 
Santa Maria and Anzoategue incidents 
also involved, among others, interna- 
tional law questions of piracy and insur- 
gency, in addition to the question of 
visit, search and seizure. 

We have noted the question of visit 
and search of merchant ships. Let us 
take a look now at warships. A warship 
on the high seas is not subject to the 
jurisdiction of any state other than her 
own. Generally speaking, the same is 
true of warships in foreign ports and 
waters. The general doctrine is, there- 
fore, that a warship remains under the 
exclusive jurisdiction of her flag-state on 
the high seas and during her entry and 
stay in foreign ports. No legal pro- 
ceedings can be taken against her either 
for damages for collision, for a salvage 
award, or for any other cause, and no 
official of the territorial (or host) state 
is authorized to board the vessel with- 
out the permission of the commanding 
officer. 

Are there any exceptions? It may 
surprise some of you to learn that there 
is one by agreement— the Antarctic 
Treaty which entered into force in June 
1961. An article of the treaty states, in 
order to promote the treaty's peaceful 
objectives and to ensure disclosure of 
violations of its prohibitions, that ob- 
servers shall have complete freedom of 
access for inspection. Specifically, it 
provides: "All areas of Antarctica, in- 
cluding all stations, installations and 
equipment within those areas, and all 
ships and aircraft at points of dis- 
charging or embarking cargoes of per- 
sonnel in Antarctica, shall be open at all 
times to inspection by such observers." 
Does this provision in the treaty mean 



170 



that U.S. Navy ships and planes in 
Antarctica would have to submit to 
inspections by Soviet observers? The 
answer is probably yes. 

The United States decided to exer- 
cise the right to unilateral inspection 
during the current astral summer season, 
and announced this decision to the 
other signatories. The Arms Control and 
Disarmament Agency prepared an in- 
spection plan which was coordinated 
with U.S. Government departments con- 
cerned, including the Navy. The plan 
called for two teams of three civilian 
observers to inspect foreign installa- 
tions, ships, and planes. As a result of 
inspections of Russian installations, 
planes and ships, reciprocal inspections 
by the Russians may be expected. 

In regard to the sovereign immunity 
of American warships, Navy Regulations 
explicitly prohibit the commanding 
officer from permitting his command to 
be searched by any person representing 
a foreign state. In order to preclude 
posing a dilemma to our ship and 
aircraft commanders, and in order to 
comply with the treaty, the Chief of 
Naval Operations has authorized inspec- 
tion of Navy ships and planes by foreign 
representatives in Antarctica. The literal 
and intended interpretation of the 
treaty does not restrict an observer to a 
superficial topside inspection but would 
permit an inspection of all compart- 
ments, right down to the bilges. The 
observer could see everything in a com- 
partment including safes, files, cabinets 
and desk drawers. In effect, there is no 
protected sanctuary aboard a Navy ship 
or plane in Antarctica. For this reason, 
CNO also has ordered all activities, and 
ships proceeding to Antarctica, to re- 
move any classified material that might 
be compromised by inspection. 



-X- 



Turning from sea problems to those 
on land, let us take a look at Cuba. With 
the Castro regime hostile to the United 



States, international law problems con- 
fronting us in Guantanamo have been 
many and varied. 

On 26 November 1963, we received 
an Operational Immediate message from 
the Commander Naval Base Guan- 
tanamo stating that a Cuban fishing 
vessel, the Indalecio, had entered the 
Guantanamo Defensive Sea Area. The 
Cuban ensign was at half-mast and 
someone was waving a white flag from 
the bow. The vessel requested per- 
mission to enter the Naval Base for 
"asylum." After boarding the vessel, it 
was discovered that there were five men, 
four women, and three children who 
wanted to enter the base. Three crew 
members and the captain were being 
held at gunpoint. Castro's government 
knew that these Cubans had arrived on 
the base, since a Cuban Army officer 
subsequently appeared at the northeast 
gate and informally asked that the 
refugees be returned to Cuba. We were 
concerned that Castro would charge the 
Cubans with being fugitives from Cuban 
justice, and demand that we return 
them to him under the terms of the 
1903 treaty with Cuba. Article IV of 
the 1903 treaty provides: "Fugitives 
from justice charged with crimes or 
misdemeanors amenable to Cuban law, 
taking refuge within [the Base] shall be 
delivered up by the United States au- 
thorities on demand by duly authorized 
Cuban authorities." As a matter of 
policy, the United States Government 
frequently has stated that it intends to 
comply strictly with the terms of the 
1903 treaty. 

The United States, as you know, has 
never accepted the principle of giving 
political asylum. Navy Regulations 
specifically prohibit naval officers from 
granting political asylum, and permits 
only the granting of temporary refuge 
to persons in imminent danger from 
mob violence. Since the defectors al- 
ready were on the base, the only course 
of action to avoid a later charge that the 
United States was violating the treaty 



171 



was to remove the refugees from the 
base as soon as possible. The refugees 
were sent to Puerto Rico that evening. 

Another Guantanamo problem was 
one with which you are all familiar— the 
water incident of 1964. On 2 February 
1964, four Cuban fishing vessels were 
observed by units of the United States 
Coast Guard to be fishing off East Key 
in the Dry Tortugas, Florida, within the 
territorial sea of the United States and 
in violation of U.S. law. At the time, 
federal law contained no penal sanc- 
tions. Therefore, the boats and crews 
were turned over to Florida authorities, 
since the Cubans were fishing in viola- 
tion of a Florida conservation law. 
Castro labeled the U.S. actions as an act 
of piracy. In retaliation, he decided to 
deprive the Guantanamo Naval Base of 
fresh water. Here is a case where our 
water was cut off literally, but not 
figuratively— for, as you know, we have 
survived. 

One of the knottiest and most recur- 
rent problems to be handled by the 
overseas commander is that of jurisdic- 
tion over military personnel who have 
committed offenses in foreign countries. 
The United States long ago recognized 
the fact that the only true security in 
the world today is collective security. In 
furtherance of this concept, the United 
States has entered into many alliances 
with other nations of the free world in 
order to protect itself as well as assist in 
the protection of these friendly coun- 
tries. One such alliance is the North 
Atlantic Treaty Organization. And, as a 
part of our contribution to this partner- 
ship, we have stationed a sizeable num- 
ber of our military forces in Europe. In 
other friendly countries throughout the 
world, our armed forces are assigned in 
more limited numbers. 

The understanding with each country 
in which our forces are stationed in- 
cludes specific arrangements with re- 
spect to the exercise of criminal jurisdic- 
tion over these forces. This aspect of the 
relationship between our forces and the 



host state is sometimes controversial, as 
with the Girard case in Japan, and, at 
times, has received a great amount of 
publicity. 

The major concept of status of forces 
agreements is the establishment of con- 
current jurisdiction, together with a 
scheme designed to divide the exercise 
of jurisdiction between the authorities 
of the sending state and the host state, 
based upon the principle of primary 
interest. In general, the military authori- 
ties of the sending state are given the 
primary right to exercise jurisdiction 
over a member of a force— or civilian 
component— when the offense involves 
the property of the sending state, the 
person or property of a member of the 
force, a civilian component of the 
sending state, or a dependent; or if the 
offense arises out of the performance of 
official duties. In all other cases, the 
receiving state has primary jurisdiction. 
As you might imagine, the question of 
whether an offense was committed in 
the performance of official duty is not 
always an easy one. 

I am reminded of a meeting I had 
recently with the Turkish Minister of 
Justice on the occasion of his visit to 
this country. During discussions with 
the three service JAG's, the Minister was 
asked if "duty certificates" were giving 
the Turkish authorities any problems. 
His reply went something like this: "An 
American serviceman spends the day 
fishing, and on his way home stops at a 
tavern and has several drinks. He leaves 
the tavern and is involved in an auto- 
mobile accident which is clearly the 
result of his drinking. The next morning 
he shows up in court with a certificate 
executed in behalf of his command 
stating that at the time of the accident 
he was in the performance of official 
duties. Yes, duty certificates do give us 
problems at times." Of course, the 
Minister was speaking hypothetically 
and was not referring to an actual case. 
But it points to the need for fair dealing 
at all levels in order to gain the mutual 



172 



respect needed for maintaining satisfac- 
tory relationships with officials of the 
host states. 



* 



I have touched land and sea problems 
confronting commanders. I would like 
to mention a current legal problem that 
confronts us in the air. The introduction 
of modern high-speed, high-altitude 
commercial jet aircraft and the at- 
tendant requirements for traffic control 
systems, navigational aids, and exten- 
sion of runways— among other things- 
have increased the cost of maintaining 
international air routes. In order to 
defray these increased costs, some states 
have established a system of user 
charges. These charges not only involve 
payment for services rendered and sup- 
plies furnished— such as fuel— but also a 
general charge for use of the system. 
They are being imposed on state-owned 
aircraft, including military aircraft, as 
well as on civil aircraft. With respect to 
the payment of aviation user charges 
under international law, state aircraft 
(including military aircraft), like war- 
ships, are deemed to be state instru- 
mentalities. No military aircraft is au- 
thorized to fly over the territory of 
another state, or land thereon, without 
special permission. In case of such per- 
mission, the military aircraft should 
enjoy, in principle— and in the absence 
of special stipulation— the privileges 
which customarily are accorded to for- 
eign warships. These privileges include 
immunity from search, seizure, and 
inspection, and exemption from fees, 
taxes, duties, and other charges paid 
normally by civil aircraft. Of course, 
charges related directly to supplies and 
services specifically requested by the 
aircraft commander should be paid. It is 
our view that no other charges can be 
required. Diplomatic representations are 
being made to the various governments 
involved. 



-X- 



Now let us look briefly at the devel- 
oping law of the spaces— "outer space" 
and "inner space." In the field of outer 
space, the Legal Subcommittee of the 
U.N. Committee on Peaceful Uses of 
Outer Space considered two important 
documents at a meeting in Geneva in 
March 1964. The United States sub- 
mitted two draft treaties: (1) Assistance 
to and Return of Astronauts and Space 
Vehicles; and (2) Liability for Damage 
Caused by Objects Launched into Outer 
Space. No agreed texts were produced. 
As in the past, the military services will 
participate with DOD in the develop- 
ment of the United States position 
papers for the next meeting of the 
committee. From these proceedings will 
evolve another chapter in the law of 
outer space. 



I mentioned a few moments ago the 
term "inner space." I use the term to 
describe the vast areas of the deep 
oceans and deep ocean floor. Admiral 
Denys W. Knoll (the Navy's Oceanogra- 
pher) prefers the term "oceanspace." 
Others have called it "liquid space. "No 
matter what you call it, it is an ex- 
tremely and increasingly important area. 

Figures show that salt water covers 
71% of our planet, that 88% of the 
oceans are 12,000 feet or deeper, that 
the bottom slopes rapidly at the edge of 
the continental shelf, falling precipi- 
tously from 600 feet to 12,000 and 
then breaks more gently to the ocean 
floor to depths up to 36,000 feet. 
Contrast with the magnitude of these 
depths the fact that we are able to 
operate today only within the first few 
hundred feet, and it is apparent that to 
date man has been unsuccessful com- 
paratively in conquering and subjecting 
to his use the ocean depths. Man still 
measures his conquests of the depths oi 
the sea in terms of feet when he is in 
fact confronted with miles. 

But we are making progress. The 
successful exploitation of the oil re- 



173 



sources of the continental shelf; the 
discovery of manganese on the bottom 
of the sea, leading to serious work on 
surface mining of the sea bottom; the 
development of the Polaris missile 
which can be launched from the depths 
of the sea; the successful extraction of 
salt, fresh water, and seaweed from the 
oceans; and the possibility of farming 
the oceans for both plants and fisheries 
resources all point up the importance of 
the area. The obvious concern is 
whether the law is keeping up with 
technology. There are two bills before 
the present Congress to appropriate 
$50,000 for a study of the legal prob- 
lems of management, use, and control 
of the natural resources of the oceans 
and ocean beds. In this area, we are 
perhaps discussing "brand new" interna- 
tional law. At the very least, it is a 
controversial area and one in which we 
do not have customary practice to draw 
on. 

Do we extend the doctrine of free- 
dom of the high seas down 9 . Do we 
extend the continental shelf doctrine 
out 9 Do we treat the area as a no-man's- 
land or as the common property of all 
nations? Or do we do a little of both? 
With respect to the legal position of the 
bed of the high seas, it would seem that 
a distinction might be drawn between 
the bed of the sea and its subsoil. 
Publicists are not in accord. With re- 
spect to the bed of the sea, the better 
opinion may be that it is incapable of 
occupation by any state, and that its 
legal status is the same as that of the 
waters above it. The same reasons for 
maintaining high seas unappropriated in 
the interests of freedom of navigation 
would seem to apply with equal force to 
the bed of the sea. On the other hand, 
the subsoil under the bed of the sea may 
be considered capable of occupation. 
There is perhaps less reason for ex- 
tending the doctrine of freedom of the 
seas to the subsoil beneath its bed. 

From a military point of view, it may 
be in our best interest with respect to 



the bed of the sea to apply the doctrine 
of freedom of the seas. When it comes 
to navigation of submarines, we cer- 
tainly are interested in free seas. When 
we have deep submersibles that will 
transit the bottoms by crawling, or by 
partial physical contact with the bot- 
tom, we may also be interested in free 
navigation of the ocean floor. On the 
other hand, there will be those who will 
advocate the adoption of the doctrine 
that these areas are capable of being 
appropriated by the first occupier. With 
the advent of "fish-f arms"— fish herding 
by means of electric fences or bubble 
barriers— mining operations and oil ex- 
ploitation of the deep ocean floor, it is 
inevitable that there will be those who 
will, in the interest of developing the 
resources of the sea, seek state protec- 
tion of areas capable of exploitation. 

As we take more and more from the 
sea, not just along our coast but from 
the open ocean, we may well need more 
international agreements, perhaps even 
the granting of rights for exploitation, 
to resolve the conflicting interests. The 
Navy has a vital concern in the techno- 
logical development of the field of 
oceanography, as well as the develop- 
ment of the law which will apply. The 
subject is under active study in the 
Department. 



* 



One of the most important principles 
of international law to the naval officer 
in the cold (and sometimes not-so-cold) 
war environment in which we operate 
today, is the right of self-defense. That 
is the right to use the degree of force 
appropriate to meet a threat to a unit of 
our forces, or a threat to the security of 
the United States. We have had occasion 
to apply this principle in more than one 
situation in the recent past, and the 
latest example is the Gulf of Tonkin. 

In connection with the experiences 
of the Maddox and the Turner Joy, the 
important facts are that these ships were 



174 



in international waters at the time of 
both attacks by PT boats of the North 
Vietnamese; that they were attacked by 
torpedoes and machine-gun fire to 
which the destroyers responded with 
5-inch batteries; and that the subse- 
quent strikes on the PT boat pens and 
the fuel dump were measured, calcu- 
lated, and limited to that force neces- 
sary to destroy the threat to our con- 
tinued use of an area of the high seas 
where our forces have every right to be. 

As stated by Ambassador Stevenson 
before the Security Council, "The 
action we have taken is a limited and 
measured response fitted precisely to 
the attack that produced it." In summa- 
tion, Ambassador Stevenson said, and I 
quote: 

Let me repeat that the United 

States vessels were in international 



waters when they were attacked. 
Let me repeat that freedom of the 
seas is guaranteed under long- 
accepted international law apply- 
ing to all nations alike. Let me 
repeat that these vessels took no 
belligerent actions of any kind 
until they were subjected to 
armed attack. And let me say 
once more that the action they 
took in self-defense is the right of 
all nations and is fully within the 
provisions of the Charter of the 
United Nations. 

Now I am not really sure how the 
missionary made out with the tiger I 
referred to at the beginning of my talk, 
but I sincerely hope that I have served 
to whet your appetite for the subject of 
international law. There is a lot here to 
bite into. 



t 



175 



THE LAW OF THE HIGH SEAS 



IN TIME OF PEACE 



Myres S. McDougal 



It perhaps requires no emphasis to 
this professional audience that the pre- 
ceding lecture on "coastal state inter- 
ests" (making reference to internal 
waters, the territorial sea, the con- 
tiguous zone, and the Continental Shelf) 
and our topic for today, the "freedoms" 
of the high seas in time of peace, are but 
two sides of the same coin. The ex- 
clusive interests of coastal states in the 
enjoyment of proximate waters and the 
inclusive interests of all states, even 
including the landlocked, in the enjoy- 
ment of the oceans of the world are 
entirely complementary: when exclusive 
interests are expanded and inflated, 
inclusive interests must be contracted 
and deflated. The principal and con- 
tinuing task of the whole law of the sea, 
of the public order of the oceans, is thus 



that of achieving in every particular 
context, a balancing or accommodation 
of these complementary interests which 
will best promote the long-term com- 
mon interests of all peoples, while re- 
jecting any claims of special interest 
destructive of such common interests. 
You are all familiar with the tremen- 
dous technological changes in recent 
decades that are permitting multiple 
new uses, both constructive and destruc- 
tive, of the vast potential reservoir of 
values that we call the oceans. You are 
also familiar with the increasing de- 
mands that different peoples about the 
world are making upon the oceans for 
the enjoyment of both old and new 
uses. Unhappily, many of these de- 
mands are not being made in terms of a 
common interest -designed to secure 



176 



the utmost productive use of a great 
sharable resource through practices of 
reciprocity and mutual tolerance-but 
rather in terms of special interest, for 
unilateral monopolization of the re- 
source and the destruction of shared 
competence and enjoyment. It is but 
one of the paradoxes of our time that 
the most extravagant claims to monopo- 
listic control over the oceans are being 
put forward in the guise of preserving 
"the common heritage of mankind." 

Some 10 years ago Professor William 
T. Burke and I wrote a book, The Public 
Order of the Oceans: a Contemporary 
International Law of the Sea. Among 
other things, we sought to examine and 
appraise the historic record of the inter- 
national law of the sea. The conclusion 
to which we came, after a survey of the 
record, was that this law, with a mini- 
mum of centralized organization and an 
economic body of none-too-complex 
rules, had served, and continues to 
serve, mankind well in an inestimably 
greater production and wider distribu- 
tion of shared values than might have 
been, or might be, achieved by monopo- 
listic control. 

Today it would appear that we may 
be confronted, in a widespread disinte- 
gration of perceptions of common in- 
terest, with the imminent dissolution of 
the principles and institutions which in 
recent decades at least have served the 
whole of mankind so well. With strong 
preferences for the protection of com- 
mon and rejection of special interests 
and for a balancing in favor of inclusive 
rather than exclusive interests, I confess 
that I may appear before you today as a 
pleader for forlorn, lost causes. 

In developing this theme of con- 
temporary disintegration, I propose to 
proceed under the following four main 
heads: 

• The Specification of the Unique 
Problems of the High Seas 

• The Clarification of Basic General 
Community Policies 

• Trends in Past Decisions with Re- 



spect to the Different Types of Prob- 
lems 

• Possible Alternatives with Respect 
to Emerging and Future Problems 



I 



We begin with the specification of 
problems. 

To make certain that we communi- 
cate, I must be sure that we share the 
same conceptions of international law 
and of the law of the sea. By interna- 
tional law I mean the comprehensive 
process of authoritative decision, tran- 
scending all territorial boundaries, by 
which the peoples of the world clarify 
and implement their common interests. 
When we look at any community, that 
is, any group of people exhibiting inter- 
determinations and interdependences, 
we can observe a process of effective 
power in the sense that decisions are 
taken and enforced whether particular 
people like it or not. Such a process is 
observable on a global scale. Even the 
Russians, the Communist Chinese, and 
ourselves are scorpions in the same 
bottle who must take each other's de- 
cisions into account. 

When we look closely at effective 
power decisions, we can see that they 
are of two different kinds. Some are 
taken by naked power, by sheer calcula- 
tions of expediency in self-interest; but 
others are taken in accordance with 
general community expectations. These 
latter decisions are taken by the people 
who are expected to take them and in 
arenas of constituted authority, such as 
courts, legislatures, and executive de- 
partments. They are taken in accor- 
dance with community expectations 
about how they should be made-about 
appropriate policies and criteria. They 
are taken by established procedures and 
enforced in sufficient degree to be of 
community consequence; they have ade- 
quate sanctions in common interest, 
reciprocity, and retaliation. 

It is this latter flow of decisions, 



177 



those taken and enforced in accordance 
with general community expectations, 
which -when projected on a trans- 
national scale -we mean by interna- 
tional law. International law is much 
more than, as sometimes described in 
the books, a body of abstract rules. The 
rules merely describe, and often most 
inadequately, past decisions. Interna- 
tional law is a living, contemporaneous 
process of choice, which includes both 
the perspectives of community members 
about such choices and the operations 
or authoritative practices by which such 
choices are put into controlling effect. 

When we look more carefully at the 
flow of authoritative decision in the 
global community, as in any com- 
munity, we can see that it is composed 
of two different kinds of decisions. The 
first are the decisions which establish 
and maintain the most comprehensive 
process of authoritative and controlling 
decision. We may call these the "consti- 
tutional" or, preferably, the constitutive 
decisions. These are the decisions which 
determine who the authorized decision- 
makers are; what policies they are to 
follow; in what structures of authority 
they are to act; what their bases of 
power for sanctioning purposes are to 
be; and what procedures they are to 
follow in making all the different kinds 
of decisions necessary to clarifying and 
implementing general community 
policy. In the global community, as in 
most communities (even those with 
written constitutional documents), this 
constitutive process is largely a product 
of the expectations people create in 
each other by their continuous coopera- 
tive behavior. 

The second kind of decisions, em- 
braced within any comprehensive 
process of authoritative decision, are 
those that emerge from constitutive 
process for the regulation of all the 
community's various value processes. 
These are the decisions by which re- 
sources are allocated, planned, de- 
veloped, and exploited; by which an 



environment is protected or devastated; 
by which populations are protected, 
regulated, and controlled; by which an 
economy is maintained or destroyed; by 
which health is fostered or neglected; by 
which human rights are protected or 
deprived; by which enlightenment is 
encouraged or retarded; and so on. One 
might describe this second kind, or 
category, of decisions in many different 
ways. For convenience we refer to them 
as "public order" decisions. 

What we mean by "the law of the 
sea" may now be made clear. The law of 
the sea comprises the "public order" 
decisions which a global constitutive 
process, established and maintained by 
all states, even including the landlocked, 
prescribes and applies for clarifying and 
securing the common interests of all 
peoples in the enjoyment of the oceans. 
In comparable terms, we might speak of 
the law of outer space, the law of 
international rivers, the law of the polar 
regions, and so on. 

Before moving to the details of the 
law of the sea, I should like to refer 
briefly to certain features of the larger 
global constitutive process of especial 
relevance. Most importantly, in recent 
decades we can observe a tremendous 
democratization. In addition to nation- 
states, international governmental or- 
ganizations, political parties, pressure 
groups, private associations, and even 
individual human beings have begun to 
play significant roles. With this increase 
in the range of effective participants has 
come a large proliferation in the number 
of territorial and functional entities 
demanding and being given voice. On 
problems other than with respect to the 
oceans, one might discern an increasing 
emphasis upon the necessity for pro- 
tecting common interests, with rejection 
of all claims of special interest. Witness 
the provisions of the United Nations 
Charter, article 2(4) for the minimiza- 
tion of coercion, the elaborate clarifica- 
tion of individual human rights in many 
declarations and covenants, and the 



178 



projected policies for the shared enjoy- 
ment of international rivers, the polar 
regions, and outer space and for the 
protection of the environment more 
generally. One might observe also an 
enormous increase in organized, inclu- 
sive structures of authority-as in the 
United Nations and the specialized and 
regional agencies-with some trend 
toward openness in access and making 
appearance compulsory for participants 
whose choices in fact affect community 
policy. There would appear also a 
modest trend toward allocating to repre- 
sentatives of the inclusive community 
both the authority and other assets 
required for the better securing of de- 
manded public order. The authority and 
control of the United Nations and the 
specialized agencies are being increas- 
ingly enhanced by the demands, identi- 
fications, and expectations of the 
peoples of the world. 

One critical feature of the larger 
constitutive process relates to how inter- 
national law, including the law of the 
sea, is made. Historically, international 
law has been made largely in two 
different ways. One way is by an ex- 
plicit agreement process in which vary- 
ing numbers of states get together and 
project a common policy in relatively 
deliberate, explicit form. The other, and 
by far the most important, way has 
been by unarticulated, habitual coopera- 
tive behavior in different kinds of activi- 
ties from which expectations about 
authority and control are derived. In 
this latter modality of lawmaking, it is 
not, as some recent clamant voices have 
asserted, the unilateral claim by one 
state that makes law, but rather the 
parallel claims by many states made in a 
context of expectations of reciprocity 
and mutual tolerance. Fortunately, the 
practices of the United Nations have 
given a great assist to both these tradi- 
tional modes of lawmaking and are 
beginning to add an institutional dimen- 
sion more closely approximating genu- 
ine parliamentary enactment. 



With this background in constitutive 
process, we are now in a position to 
return to our initial task of delimiting 
the unique features and problems of the 
law of the sea which is prescribed and 
applied by such process. What makes 
the law of the sea unique is the differ- 
ence in the degree to which the oceans 
and landmasses of the world admit of 
shared, noncompetitive enjoyment in 
the production and distribution of 
values. 

The oceans admit of shared enjoy- 
ment in high degree. Many of the 
resources of the oceans are vast, non- 
consumable, nonexhaustible, or re- 
newable; by appropriate rules of the 
road, their enjoyment can be made 
noncompetitive, while remaining eco- 
nomic. Where one ship has just been, 
another can soon come. When the initia- 
tive, energies, capital, and skills of all 
peoples can be brought to bear upon the 
enjoyment of such a resource, the pro- 
duction and distribution of values can, 
in a "multiplier" effect, be enormously 
enhanced for the benefit of all. 

The landmasses of the earth do not 
admit of shared enjoyment in the same 
degree. Their relative solidity facilitates 
the establishment of permanent seden- 
tary communities with exclusive claims, 
and their natural barriers such as moun- 
tains, streams, bodies of waters, and 
deserts inhibit freedom of movement. 
Hence, the global constitutive process 
has honored the exclusive appropria- 
tion, through the organization of terri- 
torial communities, of most landmasses. 
Even so, one observable function of 
what is called private international law 
is an effort to make the landmasses as 
sharable as possible by building and 
maintaining a world economy. 

The different territorial communities 
do, of course, require some protection 
from, and enjoyment of, the immedi- 
ately proximate oceans for the safe, 
healthy, and secure functioning of their 
internal value processes. It is for this 
reason that the global constitutive 



179 



process honors their claims in relation 
to internal waters, the territorial sea, 
contiguous zones, and occasional exer- 
cises of a unilateral competence in 
self-defense even upon the high seas. 
Such claims are rooted in different 
exclusive interests in the sense that no 
two states have precisely the same coast- 
lines or precisely the same requirements 
in internal waters, territorial sea, con- 
tiguous zones, or self-defense. They are, 
however, common interests in the sense 
that every coastal state has an interest in 
the effective protection of the activities 
on its landmasses from activities on the 
oceans. The claims become expressive of 
special interest, and hence requiring 
rejection, only when they are asserted 
beyond need and irrespective of their 
impact upon others. 

It is the complementary inclusive 
interests of all peoples in the shared 
enjoyment of the oceans, interests that 
are commonly subsumed under the label 
"freedom of the seas" for summary 
contrast with the exclusive coastal state 
interests, that are our especial concern 
in this discussion today. For systematic 
examination and appraisal of the 
clamant contemporary assertions that- 
because of changed conditions in the 
exploitation of the oceans and because 
of the more general desperate economic 
needs of the developing countries -the 
"freedom of the seas" has become 
outmoded and that it has become neces- 
sary greatly to curtail the protection 
that world constitutive process affords 
inclusive interests, I propose to organize 
our discussion in terms of the more 
important types of claims that states 
have traditionally made against each 
other for the protection of their in- 
clusive interests. These claims may be 
briefly itemized as follows: 

• Claims relating to delimitation of 
the boundaries between inclusive and 
exclusive interests. 

• Claims relating to freedom of ac- 
cess to the oceans for use. 



• Claims relating to the exclusive 
appropriation of resources. 

• Claims relating to jurisdiction (the 
making and application of law) with 
respect to activities upon the oceans. 

• Gaims relating to the maintenance 
of minimum order (prevention of un- 
authorized violence) upon the oceans. 

• Gaims relating to the promotion 
of optimum order (maximum pro- 
duction of values) in the enjoyment of 
the oceans. 

Each of these claims is distinguishable in 
that certain unique policies apply to it; 
yet all are interrelated in that the 
decisions about them, taken as a whole, 
determine the aggregate public order of 
the oceans and, hence, require the most 
explicit and careful relation to basic 
general community policies. 



II 



We turn now to the clarification, 
from the standpoint of an observer who 
seeks to identify with the whole larger 
community of mankind, of basic, gen- 
eral community policies. 

It is necessary to begin with highest 
level abstractions, since how we perceive 
the whole vitally affects how we per- 
ceive the part. The first proposition I 
would advance is that it is the prime 
responsibility of global constitutive 
process in relation to the public order of 
the oceans, as in relation to any other 
aspect of transnational public order, to 
clarify and protect the common inter- 
ests of all peoples and to reject all 
claims of special interests. By common 
interests I refer to shared demands for 
values whose achievement is affected by 
conditions of interdependence or inter- 
determination. By special interests I 
refer to those which are destructive of 
common interests, in the sense that the 
demand for values cannot be shared 
even in equivalencies and that their 
achievement is violative of the con- 
ditions of interdependence, imposing 
unnecessary harm upon others. 



180 



The common interests of all peoples 
in the enjoyment of the oceans are, as 
already emphasized, of two different 
kinds: inclusive and exclusive. By in- 
clusive I refer to interests in activities 
that have significant transnational ef- 
fects, that is, which importantly affect 
more than one territorial community. 
By exclusive I refer to interests in 
activities which predominantly affect 
only one territorial community. 

The inclusive interests of peoples in 
the enjoyment of the oceans may be 
described as relating to both minimum 
order and optimum order. By minimum 
order I refer to the conduct of activities 
by the processes of persuasion and 
agreement, with a minimum of un- 
authorized violence and other coercion. 
By optimum order I refer to cooperative 
activity in the greater production and 
wider distribution of all values, in the 
maintenance of a world economy and 
society. 

The exclusive interests of peoples 
may be described, similarly, in terms of 
both minimum and optimum order. 
Every coastal state has an interest in 
protecting its own internal minimum 
order, its relatively unique processes of 
cooperative activity, from unauthorized 
coercion, whether such coercion comes 
from internal or external sources. Every 
state has also an interest in its own 
internal optimum order, in the healthy 
functioning of its relatively unique 
processes for the shaping and sharing of 
all values. 

In very recent times it has been 
strongly urged that the developing coun- 
tries should be accorded a special width 
of territorial sea and other concessions, 
beyond what has traditionally been re- 
garded as in common interest, because 
of their special economic needs and as a 
way of righting the wrongs of a historic 
maldistribution of income. It is ex- 
plicitly recognized that these claims 
cannot be made with a promise of 
reciprocity to others and that they 
cannot be honored except by severe 



restriction of the previously protected 
inclusive rights of all. It may be sug- 
gested that these claims on behalf of the 
developing states are most misguided in 
relation to common interest. The de- 
veloping states could win by such ex- 
tensions of their protected interests 
only if other states acquiesced and did 
not make comparable demands for ex- 
tension. If a large number of other 
states make comparable demands, the 
sharable resource that lays the golden 
egg in multiplying the production of 
values can no longer be shared and 
everybody, including the developing 
states, will lose. The history of the law 
of the sea in recent decades, when not 
distorted for partisan purposes, demon- 
strates that the oceans can be main- 
tained as a sharable resource open to all 
with the necessary initiative, skill, and 
capital, with tremendous benefits for all 
in the production and distribution of 
values. The claims on behalf of the 
developing states are claims of special 
interests both in that their demands for 
values cannot be shared even in equiva- 
lences and that the conditions of their 
achievement must violate interdepen- 
dences with others. The historic inequi- 
ties in the distribution of income might 
be better remedied by appropriate re- 
organization upon the landmasses than 
by destroying the multiplier potential of 
the oceans. 

The implications of these broad 
policies for decision about specific prob- 
lems will be made apparent below. 



HI 



Let us turn next to the description of 
past trends in decision with respect to 
the different kinds of problems. 

We begin with the problem of estab- 
lishing boundaries between inclusive and 
exclusive interests. For many decades, 
until very recent times at least, our 
global constitutive process indulged a 
strong presumption in favor of inclusive 
interests, limiting the area of exclusive 



181 



coastal interests as much as possible and 
permitting their expansion only as par- 
ticular urgent purposes might require. 

Thus, the baseline which marked the 
outer boundary of "internal waters," 
from which the territorial sea was 
measured, was required to follow the 
sinuosities of the coast, with only 
modest exception for bays. It was not 
until the Norwegian Fisheries case, 1 
which rightly or wrongly found certain 
special needs in Norway for fish, that 
this requirement began to be relaxed. 

Similarly, prior to the 1960 Geneva 
Conference, it was generally agreed that 
the width of the territorial sea had to be 
very narrow, with most states claiming 
only 3 miles. Even at the Geneva Con- 
ference it was agreed that states had no 
unilateral competence to extend their 
territorial sea at the expense of the 
public domain, and 12 miles was re- 
garded as the utmost limit that anybody 
thought lawful. All this consensus was 
in wise recognition that the territorial 
sea has largely ceased to serve any 
common interest in the protection of 
exclusive coastal interests. The two prin- 
cipal justifications of a territorial sea 
have been traditionally formulated in 
terms of security and the need for fish. 
Yet the width of the territorial sea has 
today practically no relation to military 
security: attacks can come from any- 
where on the oceans or from the other 
side of the moon. When special security 
needs arise, they can be taken care of by 
contiguous zones or equivalent con- 
cepts. The width of the territorial sea 
has, again, almost equally little relation 
to the exploitation of fisheries. Most 
fish simply do not move, breed, and live 
within narrow bands of water off the 
coasts. It would require an enormous 
expropriation of the "common heri- 
tage" for any single state to obtain 
control over important stocks of fish. It 
is for these reasons that I continue to 
tell my classes that the most rational 
width of the territorial sea would end at 
the low- water mark. 



The extension of unilateral com- 
petence through the device of "con- 
tiguous zones" has also been strictly 
limited to distances regarded as "reason- 
able" for the particular purposes for 
which such zones are claimed. States 
making special claims for the protection 
of their security, customs and fiscal 
regulations, immigration laws, health, 
and so on have been required to tailor 
the zones claimed quite precisely to fit 
the special needs asserted, with the least 
possible infringement of inclusive inter- 
ests. The Geneva Convention on the 
Territorial Sea and the Contiguous Zone 
goes so far, quite irrationally and un- 
practically I think, as to limit all such 
claims to "twelve miles from the base 
line from which the breadth of the 
territorial sea is measured." Whether 
irrational and impractical or not, this 
asserted limit does demonstrate that its 
framers had not the slightest dream of 
the lawfulness of the contemporary 
extravagant claims about the width of 
the territorial sea. 

The recent expansion of exclusive 
coastal state interests through the con- 
cept of the "Continental Shelf" has, as 
in the case of contiguous zones, been 
limited more by purpose than by dis- 
tance. It may be recalled that the 
Convention on the Continental Shelf, 
despite its reference to a depth of 200 
meters, in express terms limits the width 
of the shelf only by requirements of 
"adjacency" and "exploitability," 
which are somewhat open ended. The 
limits in terms of purpose are, however, 
clear and important. The monopoly of 
the coastal state is extended only to 
certain exhaustible stock resources, that 
is, "the mineral and other non-living 
resources of the seabed and subsoil," 
and to certain relatively immobile or- 
ganisms. The policies for distinguishing 
these resources relate, quite rationally in 
common interest, to the economy and 
technology of exploitation, to dangers 
of pollution, and to potential threats to 
security from fixed, relatively per- 



182 



manent installations. It is expressly pro- 
vided in the convention that this limited 
monopoly in the coastal state is not to 
affect the legal status of the superjacent 
waters or airspace and is not to be 
exercised in ways interfering with tradi- 
tional inclusive interests. 

The contemporary disintegration in 
perceptions of common interest, re- 
ferred to above, is reflected both in 
widespread assertions of a unilateral 
competence to extend all these areas of 
exclusive interest and in occasional sug- 
gestions that there are no good reasons 
for maintaining the nice historic dis- 
criminations in the purposes for which 
the different areas are protected, that is, 
that global constitutive process should 
honor a single broad area of exclusive 
coastal interest. 

Turning to problems of access to 
areas agreed to be within the inclusive 
domain, we can observe that in recent 
decades global constitutive process has 
sought the utmost freedom of access for 
all peoples for the greatest variety of 
purposes. Thus, the Geneva Convention 
on the High Seas not only explicitly 
stipulates for protection such traditional 
freedoms as those of navigation, fishing, 
laying of submarine cables and pipe- 
lines, and flying over the high seas, but 
also adds an inter alia, which provides 
protection for the great host of 
emerging new uses. The potentialities of 
these emerging new uses-in the produc- 
tion and distribution of values for the 
benefit of all peoples -must stagger even 
an informed imagination: contemporary 
anticipations make reference to immi- 
nent developments in exploitation of 
the mineral and other resources of the 
deep seabed, improved fisheries, under- 
water transportation, scientific inquiry, 
weather forecasting and climate control, 
ecological conservation, power develop- 
ment, sea farming, storage and disposal, 
undersea residence, floating cities, recre- 
ation and therapy, and so on. 

Fortunately, the contemporary un- 
informed attacks upon the "freedom of 



the seas" do not directly question the 
importance either of equal access or of 
the protection of open-ended purposes 
in the enjoyment of the "high seas." 
What these attacks fail to perceive is 
that the more comprehensive the area in 
which such freedom of access and multi- 
plication of activities are protected (that 
is, the greater the area included within 
the "high seas"), the greater the multi- 
plier effect from shared enjoyment in 
the production and distribution of 
values. 

The particular resources of the 
oceans, which may be held open for 
inclusive enjoyment or subjected to 
exclusive appropriation, are of very dif- 
ferent kinds in terms of their charac- 
teristics bearing upon the potentialities 
of shared use. There are "space-exten- 
sion" resources whose distinctive 
characteristic is their utility as media of 
movement, transportation, and com' 
munication. There are "flow" or re- 
newable resources, of which different 
quantities become available at different 
times and which may or may not be 
increased or diminished by human 
action. Finally, there are "stock" re- 
sources, of which the quantity is rela- 
tively fixed and which may be abundant 
or scarce. 2 

It has been a principal function of 
the doctrine of the "freedom of the 
seas" to maintain space-extension re- 
sources, within the area of the inclusive 
domain, open for shared enjoyment by 
all. Since any particular use of a space- 
extension resource need not interfere 
with other uses or reduce productivity, 
the larger the number of participants 
who engage in use, the greater is the 
production and distribution of values. 
Hence, global constitutive process has 
long enforced a strong presumption in 
favor of inclusive enjoyment of naviga- 
tion, flying, cable-laying, pipe-laying, 
scientific inquiry, and so on. 

The principal flow or renewable re- 
sources are, of course, fish. Different 
kinds of fish apparently differ in 



183 



measure in the degree to which their 
renewability is affected by the activities 
of man and have a critical point in their 
exploitation. Most kinds of fish would 
appear, however, to inhabit the oceans 
in such abundance as to require only 
modest, if any, measures in conservation 
for shared enjoyment. Hence, global 
constitutive process has, again, decreed 
a strong presumption in favor of such 
enjoyment. Particular states have been 
accorded exclusive preferential rights 
only in cases of exceptional need, and 
restrictive measures for purposes of con- 
servation have, escept for a few species, 
been of minimai impact. One conse- 
quence of this shared enjoyment has 
been an accelerating increase in the 
production of food from the oceans, 
though many areas of the oceans still 
remain largely unexplored. 

The established processes of decision 
have, as yet, had but little experience 
with allocation of the "stock" resources 
(petroleum and other minerals) of the 
oceans. The reservation of such re- 
sources beneath Continental Shelves to 
the coastal states has already been men- 
tioned. The disposition of such re- 
sources beneath the surface of the deep 
seabed is presently a matter of urgent 
discussion in the global arena, and cer- 
tain alternatives will be examined be- 
low. 

The most insistent contemporary 
misconceptions of common interest are 
comprised of increasing demands for 
preferential rights for coastal states with 
respect to fish. If agreement for an 
organized, inclusive enjoyment fails, 
comparable demands may shortly be 
made with respect to the stock re- 
sources of the deep seabed. 

It should not be surprising, in a 
relatively decentralized and unorganized 
world, that peoples should find the best 
guarantee of inclusive enjoyment in 
inclusive competence. For the making 
and application of law with respect to 
activities upon the oceans, global con- 
stitutive process delegates a highly 



shared competence to particular states. 
For decades a few relatively simple rules 
and a minimum of organization have 
been employed both to maintain order 
and to promote optimum enjoyment. 

The few rules are built upon the 
basic constitutive prescription that 
everybody is entitled to free access to 
the oceans and that nobody is au- 
thorized to exclude anyone else from 
shared enjoyment. The first rule is that 
every state may make and apply law to 
the activities of its own ships and 
nationals. The second rule is that no 
state may make and apply law to the 
ships of other states except for viola- 
tions of international law-violations re- 
lating to piracy, slavetrading, infringe- 
ments of contiguous zones, threats to 
security, and so on. The third rule, and 
the linchpin which has held the whole 
simple structure of shared competence 
and enjoyment together, is that every 
state may ascribe its nationality to a 
ship and that no state may, for whatever 
reason, question this ascription of na- 
tionality. 

The principal attack upon this struc- 
ture of shared competence has come in 
the Geneva Convention on the High 
Seas (article 5) which provides for a 
"genuine link" between a state con- 
ferring nationality and a ship. This 
concept was derived from the Notte- 
bohm case, 3 which fashioned it to 
deprive an individual human being of 
access to a tribunal for a hearing on the 
merits of alleged mistreatment, and no 
one has ever suggested any rational 
meaning that might be given to it in 
relation to ships. At first it was feared 
that the concept might be employed to 
permit states unilaterally to question 
each other's competence to confer na- 
tionality on ships. So far these fears 
have proved unfounded, and it is to be 
hoped that they will remain groundless. 
This is not to suggest that there are not 
problems about labor relations, taxa- 
tion, safety, and health requirements in 
relation to ships that require attention. 



184 



It is rather to suggest that each of these 
problems has its own unique remedies 
and cannot be resolved by destroying 
the linchpin that holds the entire struc- 
ture of shared competence together. 

The prevalence of shared military 
uses makes the maintenance of mini- 
mum order, that is, the prevention of 
unauthorized violence, even more com- 
plex upon the oceans than upon the 
landmasses. The basic policies of the 
United Nations Charter and associated 
prescriptions apply equally to the 
oceans as to the landmasses, and the 
basic distinction between impermissible 
coercion ("aggression," "threats to the 
peace," "intervention," et cetera) and 
permissible coercion ("self-defense," 
"police action," "reprisals," "sanc- 
tions," et cetera) is equally relevant. 

The application of these policies re- 
mains, however, largely decentralized, 
and the special circumstances of inter- 
action upon the oceans make assess- 
ments of lawfulness and unlawfulness 
peculiarly difficult. Every state is held 
responsible for the lawful behavior of 
the ships to which it ascribes na- 
tionality, and when ships are responsible 
to no state, the historic, but still impor- 
tant, law of piracy becomes applicable. 

In very recent days there has been 
some insistence with respect to the 
oceans, as with respect to outer space, 
that "peaceful uses" do not include any 
military uses. The perception that the 
present precarious "peace" of the world 
is dependent not so much upon the 
prescriptions of the United Nations as 
upon a very delicate global balancing of 
power, in which the military uses of the 
oceans play an important role, has, 
however, precluded this insistence from 
being made effective. Some modest 
steps toward a balanced demilitarization 
of the oceans have been achieved in the 
prohibition of nuclear tests and an 
emerging prohibition of fixed nuclear 
installations. 

For the promotion of optimum 
order, that is the maximum production 



and distribution of values, the law of 
the sea maintains a great variety of 
prescriptions and institutions. For re- 
solving conflicts between different in- 
clusive uses, between inclusive and ex- 
clusive uses, and between different ex- 
clusive uses, the overriding aspiration is 
to achieve an economic accommodation 
through a systematic, contextual analy- 
sis of relative impacts and of the policy 
consequences of alternatives in decision. 
This general approach is reflected in 
comprehensive and detailed prescrip- 
tions about a host of problems, such as 
the allocation of jurisdiction, imposition 
of liability for injury, rules of the road, 
conformity with international stan- 
dards, safety of life at sea, signal codes, 
assistance to persons and ships in dis- 
tress, nuclear-powered ships, pollution, 
and so on. The role of the Inter-Govern- 
mental Maritime Consultative Organiza- 
tion in the modernization and adminis- 
tration of these prescriptions is well 
known. 

IV 

We come, finally, to the new, 
emerging problems and possible alterna- 
tives for their solution. 

A call is being made by the General 
Assembly for a new United Nations 
conference on the law of the sea in 
1973. At this conference the whole 
allocation of interests and competences 
between the inclusive community and 
coastal states will undoubtedly be 
brought up for review, and, given the 
arrogant contemporary perspectives of 
nationalism and misperceptions of com- 
mon interest, disaster may impend. 

The problems that, thanks to an 
assist from Ambassador Pardo of Malta, 
have precipitated this comprehensive 
review of the law of the sea are those 
that derive from the newly achieved 
accessibility of the deep seabed and its 
resources. From an anthropological per- 
spective, these particular problems 
might appear to admit of solution either 
by an extension of the exclusive com- 



185 



petence of states or by retention of 
inclusive competence, with a choice 
among a number of specific alternatives 
under each general option. 

One alternative in exclusive compe- 
tence might be to permit coastal states, 
under the "exploitability" criterion in 
the Continental Shelf Convention, to 
extend their authority and control over 
seabed resources up to a point in the 
middle of the ocean, where they might 
confront each other. This approach 
would require an interpretation of the 
Continental Shelf Convention not now 
generally accepted and would, of 
course, give the bulk of the riches of the 
deep seabed to only a few states. 

Another alternative in exclusive com- 
petence might be to regard the surface 
of the seabed and its underlying riches, 
as the landmasses were once regarded, as 
res nullius and to honor permanent, 
exclusive appropriation of areas effec- 
tively occupied. This would, of course, 
reward the strong and technologically 
advanced states at the expense of others 
and might lead to intense conflicts as 
states sought to establish new domains 
of sovereignty. 

Alternatives in inclusive competence 
would appear to admit of an infinite 
variety in degrees of organization. The 
least organized form would be to treat 
the riches of the seabed as res com- 
munis, like fish, and to allow partici- 
pants in the enjoyment of the oceans to 
stake out claims for limited competence 
over identifiable and finite submarine 
areas for the purpose of exploitation. 
The adoption of this alternative would 
require states to prescribe and apply 
mining laws, such as have prevailed 
upon the landmasses: claimants would 
be required to give public notice of the 
areas claimed, to identify and mark the 
area of operation as clearly as possible, 
and to commence and complete ex- 
ploitation of the designated area within 
a reasonable time. Such a system could 
be administered without a vast interna- 
tional bureaucracy, and, if agreement 



upon more organized inclusive compe- 
tence fails, it could be this alternative 
with which the peoples of the world will 
actually operate. 

More organized inclusive competence 
could range from the mere provision of 
recording or registration facilities and 
dispute settlement to a monopoly of 
production and distribution activities by 
international agencies. There are liter- 
ally dozens of potential models both in 
variety of purpose and machinery of 
administration. Within very recent years 
the United States, through the initiative 
of President Nixon, has put forward for 
consideration by the United Nations 
one such model which would appear 
both magnanimous in purpose and 
highly complex in its prescription and 
projected administration. This proposal 
would mark the outer limit of compre- 
hensive, exclusive coastal competence 
over the resources of the seabed at the 
point where the waters reach 200 
meters in depth, establish a shared 
competence between coastal states and 
the general community over the re- 
sources of the continental margin be- 
yond the 200-meter point, and provide 
an international machinery for control 
of exploration and exploitation beyond 
the continental margin. From all ex- 
ploitation beyond the 200-meter point, 
royalties would be collected for the 
benefit of the developing countries. It 
can be expected that many comparable 
models will burgeon from many other 
sources, official and nonofficial. 

Any rational choice among the op- 
tions in unorganized and organized ex- 
ploitation of the resources of the deep 
seabed must, of course, depend upon 
the kind and quality of the organization 
that states can negotiate. The high 
potentials in, and the necessity for, the 
most intense cooperation, if all possible 
multiple uses are to be enjoyed and 
protected, would appear, however, to 
establish a strong presumption in favor 
of a' high degree of organized, inclusive 
competence. 



186 



A rational decision about establishing 
the boundaries between exclusive 
coastal competence and inclusive gen- 
eral community competence over the 
resources of the seabed must equally 
depend upon the purposes and adminis- 
trative machinery that states can nego- 
tiate. Given the legislative history of the 
Continental Shelf Convention and sub- 
sequent practice and authoritative com- 
munication, including the North Sea 
case, 4 there would appear little doubt 
that coastal states may, within the limits 
of "adjacency" and under the benefits 
of "exploitability," extend their ex- 
clusive competence to the full width of 
the geologic margin. If, however, states 
can negotiate purposes and administra- 
tive machinery, adequate to ensure the 
security and other shared exclusive in- 
terests of coastal states, to provide for 
both representative and responsible par- 
ticipation on an inclusive basis, and to 
afford reasonable promise of an en- 
hanced and economic production of 
values with an equitable distribution, 
then common interest might suggest 
drawing the outer limits of exclusive 
competence somewhat closer to the 
shore. 

One final emphasis might be that the 
problem of remedying a global mal- 
distribution of income should not be 
permitted to blind peoples to the in- 
herent exigencies of a productive use of 
the oceans. When large portions of a 
potentially sharable resource are 
brought under exclusive, monopolistic 
competence and control, there can only 
be a diminishing of production. No 
matter how equitable the formula for 
distribution, when the total "pie" avail- 
able to be divided is small, a share may 
not be worth very much. The special 
problems involved in allocating a per- 
centage of the oceans' wealth for the 
benefit of the developing states or for 
the support of the United Nations can 
and should be considered on their 
merits, without their being intermingled 
with considerations about the most pro- 



ductive and economic employment of 
resources. 

In conclusion, I should like to strike 
hard the same note with which I began. 
Law in any community serves the func- 
tion of clarifying and protecting the 
common interests of the members of 
that community. The quality of law 
that a community can achieve depends 
most fundamentally upon the perspec- 
tives of its members about their com- 
mon interests: What values they de- 
mand, how deeply they identify with 
the whole community, and the compre- 
hensiveness and realism of their expecta- 
tions about the conditions under which 
they can secure their values. For one 
who seeks to identify with the whole 
community of mankind and is con- 
cerned with the global common interest, 
the most urgent task is that of clarifying 
for the peoples of the world the con- 
tinuing tremendous advantages in main- 
taining the utmost inclusive competence 
over, and enjoyment of, the oceans. In 
peroration about the beauties of a nar- 
row territorial sea, Professor Burke and 
I made an argument which applies, I 
think, equally to all the resources of the 
oceans. We put it this way: 

The positive form of the argu- 
ment for maintaining the oceans 
of the world open in the greatest 
degree possible for inclusive use 
can be related in detail to every 
phase of the process of interaction 
by which the oceans are in fact 
used and enjoyed. Most impor- 
tantly, the physical characteristics 
of the resources sought to be 
enjoyed-of the oceans as a spa- 
tial-extention resource, principally 
useful as a domain for movement, 
and of the fisheries as, for the 
most part, a flow or renewable 
resource, without a critical zone 
below which depletion is techno- 
logically irreversible -establish 
that such resources are sharable in 
highest degree, promising maxi- 
mum gains to all, with a minimum 



187 



of particular losses, from inclusive 
use. The world social process ex- 
hibits many territorial communi- 
ties, private associations, and in- 
dividuals with the capabilities, and 
potential capabilities, of assisting 
in the exploitation of the riches of 
the oceans. The ocean areas are so 
vast that simultaneous activities 
may go forward, at the cost of 
only minor physical accommoda- 
tions, even in the waters closest to 
coasts. Inclusive access to the 
oceans both significantly enhances 
the base values of all participants 
in their enjoyment and increases 
the aggregate base values brought 
to bear by the general community 



upon exploitation. The strategies 
by which resources so vast are 
exploited can be noncompetitive 
and cooperative, with a minimum 
of mutual interference and depri- 
vation. The outcomes of inclusive, 
cooperative enjoyment-as several 
centuries have demonstrated-can 
be genuinely integrative, with all 
winning and none losing, in a 
tremendous production and wide 
sharing of benefits. 

It is at least incumbent upon 
those who dispute this position 
either to give reasons based upon 
common interest or explicitly to 
reject common interest as a basis 
for decision. 5 



FOOTNOTES 



1. The Hague, International Court of Justice, "Fisheries Case, Judgment of December 18, 
1951," ICJ Reports (Hague: 1951), p. 116. The Court, recognizing the unusual configuration of 
Norway's coast, upheld over United Kingdom challenge a Norwegian territorial sea delimitation 
that used straight baselines protruding from the outermost points of its land not continuously 
covered by the sea. 

2. The concepts of "flow" and "stock" resources are borrowed from Siegfried von 
Ciriacy-Wantrup, Resources Conservation— Economics and Policies (1952). For further explica- 
tion of all these types of resources, see Myres S. McDougal, et al., Law and Public Order in Space 
(New Haven: Yale University Press, 1963), p. 776, et seq. 

3. The Hague, International Court of Justice, "Nottebohm Case (second phase) Judgment of 
April 6, 1955," ICJ Reports (Hague: 1955), p. 4. Nottebohm, a German citizen resident in 
Guatemala 34 years, became a naturalized citizen of Liechtenstein in October 1939. Rejecting his 
claim that Guatemala ignored this Liechtenstein citizenship in illegally deporting him later in the 
war, the Court held his association with Liechtenstein was too tenuous to justify other states' 
recognition of that citizenship, which was obtained merely for his protection. 

4. The Hague, International Court of Justice, "North Sea Continental Shelf, Judgment," ICJ 
Reports (Hague: 1969), p. 3. The Court found that boundary lines for division of the North Sea 
Continental Shelf were to be drawn equitably among Germany, Denmark, and Holland. The 
Court rejected an argument that the 1958 Geneva Convention on the Continental Shelf 
controlled the division and also held that the principle of equidistant delimitation was not a rule 
of customary international law. 

5. Myres S. McDougal and William T. Burke, The Public Order of the Oceans (New Haven: 
Yale University Press, 1962), p. 564. 

f ■ 



188 



THE LAW OF THE SEA CONFERENCE: 
ISSUES IN CURRENT NEGOTIATIONS 



Lewis M. Alexander 



As all of you are probably aware, the 
10- week-long Caracas session of the 
Third Law of the Sea Conference was 
recently concluded. One hundred and 
thirty-seven delegations were at the 
Conference, representing 90 percent of 
the independent states of the world. All 
types of countries were in attendance- 
coastal states, landlocked, shelf-locked, 
island states, archipelagos, straits states, 
and states through which landlocked 
countries must transit to obtain access 
to the sea. There was also, of course, the 
familiar dichotomy of developed and 
developing countries. 

No tangible progress was made at 
Caracas toward the conclusion of a new 
Law of the Sea Convention. No articles 
of the new Convention were adopted; 
no formal votes were taken on substan- 
tive issues; and no declaration of prin- 
ciples emerged from the proceedings. 



This is hardly surprising, not only in 
view of the number and diversity of 
countries attending, but also because of 
the complexity of issues involved in the 
new Convention. For many delegations 
the decision matrix presented to them 
was little short of bewildering. In their 
opening statements at the early plenary 
session, a number of countries pointed 
out the need for a "package" arrange- 
ment, in which one country or group of 
countries would make concessions on 
certain issues in order to win support 
for other issues. But the conditions 
under which such trade-offs might be 
made never seemed to coalesce. More- 
over, highly complex issues such as 
liability provisions for tankers of the 
price-setting functions of the proposed 
Seabed Authority were sometimes 
looked upon as great-power ploys to 
divert the attention of the less 



189 



developed countries from their more 
immediate objectives. The solidarity of 
the so-called "Group of 77" developing 
states (which, in reality, now has 103 
members) was often strained, and some 
less developed countries suspected the 
maritime powers of exacerbating these 
strains by pointing out to certain of the 
less developed countries how much their 
real-world ocean interests differed from 
those of their neighbors. For example, 
many of the developing landlocked 
states were insisting on their rights to 
benefit from the fisheries resources off 
their neighbors' coasts (a right which 
had been supported by a recent declara- 
tion of the Organization for African 
Unity). But adjacent coastal states, as, 
for example, Tanzania, while agreeing to 
this in principle, were sobered by the 
facts; first, that they have only limited 
fisheries resources in their coastal 
waters; second, that they may be 
bordered by two or more landlocked 
nations (Tanzania has five such neigh- 
bors); and third, that most of the 
landlocked countries have a number of 
coastal neighbors and thus the potential 
for sharing in the resource development 
of several offshore zones. How would 
the allocation of economic zone re- 
sources then be worked out? The 
United States and Canada, I might note, 
have no landlocked neighbors to worry 
about. 

I emphasize this problem of access to 
the sea and its resources because it 
points up so clearly one of the divisive 
elements within the Third World bloc- 
and within geographic groupings of the 
less developed countries, such as the 
Latin American, African, and Arab 
blocs. The many pressures for and 
against bloc solidarity were super- 
imposed on the already complex issues 
of the individual states' ocean interests, 
leading one to speculate as to just what 
the processes will be whereby individual 
delegations decide on how to cast their 
votes-when the time for vote casting 
finally comes. 



There was something of a built-in 
resistance to decisionmaking at Caracas 
in that no deadlines existed for voting. 
Everyone knew there would be at least 
one follow-up session next summer, and 
indeed one has been scheduled for 
Geneva next 17 March to run until early 
May. Add to this the facts; first, that 
the delegates had before them at the 
opening of the Conference no single 
draft text with which to work; and 
second, that the voting procedures 
themselves are extremely cumbersome. 
The chairman of the Conference must 
officially find, for every issue voted on, 
that no consensus is possible before a 
vote -based on the principle of a two- 
thirds majority of Conference partici- 
pants-can take place. 

So far as the law of the sea issues 
themselves are concerned, I have arbi- 
trarily arranged them into 12 items and 
combined them under certain headings. 
My intent is to consider each of the 12 
in terms of the problems involved, the 
U.S. position as presented at Caracas, 
and of the interests of other countries in 
the issue. And before I begin, one caveat 
is necessary. Although I attended the 
Conference for a time this past summer 
as an adviser (or "expert" as we were 
termed) with the U.S. delegation, my 
remarks today should in no way be 
construed as reflecting official U.S. 
policy. I speak only as a private citizen. 

Now first, a rundown on the 12 
issues. 

Under the general heading of "Zonal 
Arrangements" are three topics: the 
territorial sea, the economic zone, and 
limits to seabed jurisdiction. 

A second general heading is "Tra- 
ditional High Seas Freedoms" and in- 
cludes freedom of navigation, freedom 
of fishing, and freedom of scientific 
research. 

Under the third heading, "Environ- 
mental Protection" is only one issue- 
establishing and enforcing pollution 
control measures. 

Issues eight and nine come under the 



190 



title "Exploiting Seabed Resources." 
Number eight is The International Sea- 
bed Resources Authority, and nine is 
revenue sharing on the outer continental 
margin. 

Another general heading is "Dispute 
Settlement Arrangements" and contains 
only the one issue, criteria and ma- 
chinery for handling international dis- 
putes. 

The last two issues involve "Regional 
Arrangements." First, there are what I 
would call mutual benefit systems, such 
as regional fisheries or pollution control 
agreements. Then there are compen- 
satory arrangements which are designed 
to benefit the geographically disadvan- 
taged states. 

In establishing my list of 12 issues, I 
do not mean to imply that they are all 
of equal complexity. And someone else, 
in looking over the list of some 100 
topics the Conference is supposed to 
deal with, might come up with a dif- 
ferent grouping of subjects. But this 
listing is intended only to serve as a 
means of organizing a lot of compli- 
cated material into a manageable form. 

One point should be noted early on. 
The delegates to the Third Law of the 
Sea Conference are not working in a 
vacuum. There exists already a body of 
rules and regulations on the public order 
of the oceans, which was hammered out 
at the First Law of the Sea Conference 
in 1958 and which has been modified 
somewhat by subsequent court de- 
cisions and by state practice. Although 
some of the more extreme delegates 
have declared the 1958 Conventions to 
be obsolete and of another era, these 
Conventions nevertheless provide the 
base upon which the new Law of the 
Sea is to be built. Unless and until the 
Convention articles are superseded and/ 
or formally renounced by most of the 
world community, they would appear, 
according to most authorities of which I 
know, to remain in force. 

Let us start now with the first issue, 
the territorial sea. Two sets of problems 



are involved here: the breadth of the 
territorial sea and the baselines from 
which the breadth is measured. Most 
states of the world now favor 12 miles 
for the breadth of the territorial sea, 
even though by such action most of the 
international straits of the world are 
closed off by territorial waters. About 
half of the coastal countries of the globe 
now adhere to 12 miles. The United 
States has announced its willingness to 
support the 12-mile principle, providing 
satisfactory arrangements can be 
worked out on the question of transit 
(or passage) through international 
straits. But some 10 countries, most of 
them in Latin America, claim a 200-mile 
territorial sea and have indicated no 
willingness to reduce this distance to 1 2 
miles, even if a new Convention came 
into force. One problem seems to be to 
prevent other states from going to a 
200-mile limit before a new treaty is 
signed and ratified. 

The baseline delimitation question 
was, to some extent, resolved in the 
1958 Convention, but there remain 
problems such as historic waters, atolls, 
drying rocks and reefs, artificial struc- 
tures, and other topics not covered 
adequately at the First Law of the Sea 
Conference. And there is the problem of 
archipelagos -a topic now recognized as 
a separate and distinct issue which must 
be dealt with apart from the question of 
islands. One problem here concerns de- 
limitation; in all cases can the archi- 
pelagic state connect its outermost 
islands and drying rocks with straight 
baselines (regardless of the distances and 
extent of waters involved) and from 
these baselines measure seaward its terri- 
torial waters? What of mainland states, 
such as Greece and Canada, which have 
offshore archipelagos? Can the islands as 
a group be closed off here, as in the case 
of midocean situations? Should archipe- 
lagos still under colonial rule, such as 
the Cook Islands and the New Hebrides, 
be closed off by straight baselines the 
same as for independent states? The 



191 



United States, here as in other cases of 
baseline delimitations, has tended to 
follow a somewhat cautious and con- 
servative approach. 

Perhaps more important than the 
delimitation details is the question of 
passage by foreign vessels through archi- 
pelagic waters. One suggestion is that 
the archipelagic state establish sealanes 
through its interisland waters. Within 
these lanes both commercial and mili- 
tary vessels would have transit rights, 
although some states have suggested 
that these rights extend only to com- 
mercial vessels. The United States would 
favor the principle of unimpeded pas- 
sage through such sealanes, including 
overflight and the passage of submarines 
submerged. 

A related topic is that of the con- 
tiguous zone. In the past this zone has 
existed between the outer limits of the 
territorial sea and 12 miles from shore. 
Within it the coastal state has the right 
to prevent infringement of its customs, 
fiscal, sanitary, and immigration laws. If 
all states go to a 12-mile territorial sea, 
is the contiguous zone concept still 
necessary? Some states favor applying it 
to a zone seaward of the 12-mile limit, 
but to this the United States is opposed. 

Beyond the territorial sea will be an 
economic zone, extending to a maxi- 
mum distance of 200 nautical miles 
from shore. If a 12-mile territorial sea 
were adopted by all countries, the maxi- 
mum breadth of the zone would, of 
course, be 188 miles. Most states agree 
that within the economic zone there 
will be freedom of navigation and over- 
flight (although they do not mention 
the passage of submarines submerged) 
and freedom to lay underseas cables and 
pipelines. 

The United States has indicated its 
willingness to support the economic 
zone concept, providing "correlative 
coastal state duties" are accepted. In his 
speech of 11 July, Ambassador Steven- 
son, head of the U.S. delegation, sug- 
gested that the coastal state rights 



include "full regulatory jurisdiction" 
over the exploration and exploitation of 
economic zone resources, but 4 weeks 
later, the U.S. Draft Articles on the 
Economic Zone mentioned the "sover- 
eign and exclusive rights" of the coastal 
state to explore and exploit these re- 
sources. Among the "correlative coastal 
state duties" which the United States 
seeks to obtain are the prevention of 
unjustifiable interference with naviga- 
tion, overflight, and other nonresource 
uses and compliance with international 
environmental obligations. We also seek 
full utilization of fisheries resources in 
the coastal economic zone, freedom of 
scientific research there, and flag-state 
enforcement of pollution control 
measures. These duties will be con- 
sidered in more detail later. 

If a 200-mile exclusive economic 
zone were adopted worldwide, some 37 
percent of the world ocean would be 
closed off within national limits. Several 
countries would acquire large areas (the 
United States alone would receive 2.2 
million square miles of ocean space), 
but many states would get little or no 
additional territory. Thus the rationale 
for "compensating" the landlocked and 
other geographically disadvantaged 
states by permitting them to share in 
the benefits derived from resource 
utilization in their neighbors' economic 
zones. Some of the disadvantaged at this 
time claim rights only to the living 
resources of neighboring zones; others 
want to share also in the exploitation of 
nonliving resources, particularly oil and 
natural gas. 

A special delimitation problem for 
the 200-mile zone relates to islands. 
Any naturally formed area of land 
above water at high tide is an island 
entitled to its own territorial sea. Will it 
also be entitled to a 200-mile economic 
zone? If so, a single midocean rock 
might have surrounding it an economic 
zone which closes off 125,000 square 
nautical miles of ocean. On this ques- 
tion of economic zones about islands, 



192 



the United States has not declared its 
position one way or the other. 

Beyond the 200-mile economic zone 
of certain countries there may still exist 
portions of the continental margin. In 
some instances the shelf itself may 
extend more than 200 miles from shore. 
In other cases only the continental slope 
and/or rise may continue so far from 
land. The United States and several 
other states have suggested that national 
control over the resources of the seabed 
and subsoil should extend either to 200 
miles off shore or to some alternative 
limit on the seabed, for example, the 
3,000-meter isobath, whichever gives to 
the coastal state the greatest amount of 
seabed areas. No specific criterion for 
fixing this outer limit, beyond the 
200-mile boundary, has been specified 
by the United States. Probably it would 
be based on some depth criterion; the 
two depth figures most often cited are 
2,500 and 3,000 meters. The isobath 
selected might provide a very general 
basis for the boundary location, with 
straight lines joining fixed geographic 
coordinates marking the precise bound- 
ary position. Obviously the greater the 
area of seabed under national jurisdic- 
tion, the less will remain as the "com- 
mon heritage of mankind." Extending 
coastal state jurisdiction over seabed 
resources to 200 miles and/or the outer 
portion of the continental margin would 
mean that the hydrocarbon resources of 
the ocean floor would, for all practical 
purposes, be lost to any International 
Seabed Authority. 

According to the U.S. Draft Articles 
of this past summer, the coastal state's 
sovereign rights over the Continental 
Shelf are restricted to the purposes of 
exploring and exploiting its natural re- 
sources. Other uses of the seabed be- 
yond territorial limits by member states 
of the international community pre- 
sumably are not affected by these 
coastal state rights. 

One problem common to all three 
zonal issues mentioned so far is the 



delimitation of boundaries between 
opposite and adjacent zones. What 
weight shall be given to uninhabited 
islands and rocks located close to a 
proposed boundary? What of islands in 
dispute between countries; how can 
they be taken into consideration in 
determining limits? Under what condi- 
tions can recourse be had to "special 
circumstance" situations? Such ques- 
tions have existed in the past, and in a 
few areas, such as the North Sea and the 
Persian (or Arabian) Gulf, they have 
been resolved. But soon delimitation 
problems may be magnified through the 
establishment of the extended economic 
zone beyond territorial limits. 

We come now to the general heading 
"Traditional Freedoms of the High 
Seas," and the first of these is freedom 
of transit. So far as territorial waters are 
concerned, the right of innocent passage 
is guaranteed in the 1958 Geneva Con- 
vention. Passage is innocent so long as it 
is not prejudicial to the peace, good 
order, or security of the coastal state. 
But some people claim that the deter- 
mination of "innocent" and "non- 
innocent" passage can become a subjec- 
tive matter. Take, for example, vessel- 
source pollution standards. A coastal 
state may claim that foreign vessels 
which do not observe the coastal state's 
pollution control regulations are en- 
dangering the state's interests; hence, 
passage by such vessels is not innocent. 
Or, a coastal state may assert that 
transit through -or overflight of— its 
territorial waters by the military craft of 
certain foreign powers endangers its 
security and thus is not innocent. Which 
brings up the problem of straits. 

The United States favors unimpeded 
passage through straits used for interna- 
tional navigation. Passage includes the 
movements by surface vessels -both 
commercial and military -by aircraft 
and by submerged submarines (although 
through some straits, such as Malacca, 
passage submerged is highly dangerous, 
if not impossible). The United States is 



193 



willing to accept obligations so far as 
taking reasonable measures to insure 
against vessel-source pollution in straits 
and to in no way interfere with the 
internal security of states bordering the 
transited strait. 

There are many variations on this 
theme. Some countries distinguish be- 
tween straits connecting two parts of 
the high seas with one another and 
those connecting the high seas with 
territorial waters; only in the former 
situation, according to these pro- 
ponents, would freedom of transit be 
guaranteed. There are states which want 
prior notification and a constant re- 
quirement for the passage of military 
vessels through international straits; 
there are others which balk at the 
submerged submarine concept. Perhaps 
only a selected number of straits should 
be designated as coming under the 
regime of unimpeded passage. Here is an 
issue with which only a relatively small 
number of states are directly involved 
(those bordering on the affected straits 
and those seeking passage through 
them), but an issue with strong emo- 
tional overtones and the potential for 
conflict between the developed mari- 
time and many of the developing non- 
maritime countries. 

Another traditional freedom of the 
high seas is fishing. But in the economic 
zone the coastal state will have jurisdic- 
tion over living resources. The United 
States has suggested that within its 
economic zone the coastal state has the 
duty to conserve these resources. More 
important, perhaps, the United States 
has joined with several other countries 
in supporting the "full utilization" prin- 
ciple; that is, if the coastal state is 
unable to harvest the full fisheries po- 
tential in its economic zone, it is obli- 
gated to permit foreign fishermen to 
come in and exploit the unutilized 
species. This is a worthy concept; with- 
out it the total world catch might 
decline as coastal states fail to harvest 
the full potential within their economic 



zone. It is estimated that over 90 
percent of the world fisheries catch is 
taken within 200 miles of shore. 

But what body is to set the "optimal 
yield" for a given economic zone -that 
is, the total allowable catch per year 
according to biological, economic, and 
other considerations? It is the difference 
between the coastal state's harvest 
potential and this optimal yield figure 
which foreign fishermen are to exploit. 
And who will set the priorities for 
determining which foreign fishermen 
will be permitted to harvest the un- 
utilized stocks, and what fees or royal- 
ties they will pay to the coastal states 
for the privilege of such exploitation? 
These seem the type of questions for 
international dispute settlement 
machinery to handle. 

The United States has suggested that 
for highly migratory species such as 
tuna an international organization 
should control exploitation, even in the 
coastal states' economic zones. And in a 
move away from high seas freedoms, the 
United States has suggested that the 
coastal state retain control over anad- 
romous species (particularly salmon) 
which in their early life cycle inhabit its 
rivers. These fish move down to the 
oceans for most of their mature life, 
before returning to the rivers to spawn 
and die. Coastal state control over the 
harvesting of such species would be 
retained no matter where in the ocean 
such fish move to during the salt water 
phase of their cycle. Such an arrange- 
ment currently exists in the Northeast 
Pacific under a treaty involving the 
United States, Canada, and Japan. 

Freedom of scientific research is an 
issue on which the United States has 
few supporters. We are willing to carry 
out certain obligations, including prior 
notification of the intent to carry out 
research in a foreign state's economic 
zone, permission for scientists from the 
coastal state to participate in the re- 
search project, and open publication of 
the research results. But we balk at the 



194 



suggestion of a consequent requirement 
to seek permission for research beyond 
territorial limits; first, because of the 
possibility that a coastal state will with- 
hold consent for capricious reasons; and 
second, because of the interminable 
delays which have often been ex- 
perienced in acquiring permission (or 
being denied it) for U.S. vessels to carry 
out research involving foreign states' 
continental shelves. My own guess is 
that the principle of freedom of scien- 
tific research in foreign states' economic 
zones may turn out to be one of the 
casualties of the Third Law of the Sea 
Conference. 

Next is environmental protection. 
How will vessel-source pollution control 
standards be established and enforced in 
a coastal state's economic zone? One 
point of view is that these matters are 
coastal state prerogatives and, indeed, 
that it might be possible for less de- 
veloped countries to set up a system of 
double standards -one for the vessels of 
developed countries which use the 
coastal state's ports and/or pass through 
its national waters, and a more liberal 
set of requirements for ships of the 
coastal state itself and perhaps those of 
its neighbors. Countering this is the 
viewpoint that internationally agreed 
upon standards should be put into force 
(the standards to be set by the Inter- 
Governmental Maritime Consultative 
Organization or some like body) and 
that enforcement of the standards 
should be primarily the responsibility of 
the flag state. If a U.S. vessel, for 
example, were found to be in violation 
of the international standards off the 
coast, say, of a West African state, the 
offense would be a matter for the 
United States to handle. Only in cases 
where a direct disaster threatens the 
coastal nation or if the flag state has 
proven itself to be consistently unable 
or unwilling to police its own ships 
would the coastal state be entitled to 
step in and, on its own, enforce the 
environmental standards. 



Between these two extremes are all 
manner of positions. Can the coastal 
state, for example, adopt in its eco- 
nomic zone, pollution-control standards 
which are more severe than those set by 
an international body? Are government 
vessels, including warships, immune 
from a state's pollution-control regula- 
tions? How will liability provisions be 
enforced? Should there be an interna- 
tional liability to take care of incidents 
such as the Torrey Canyon disaster? 
Environmental protection is one area in 
which many delegates often found 
themselves way over their heads so far 
as arguments over jurisdictional prob- 
lems were concerned. 

The same might be said for the next 
issue-the International Seabed Re- 
sources Authority. Nearly everyone 
agrees that the resources of the seabed 
beyond the limits of national jurisdic- 
tion are the common heritage of man- 
kind and that a portion of the revenues 
derived from their exploitation should 
go to an international fund to be dis- 
tributed to the nations of the world, 
particularly the developing states. But at 
this point, agreement ends. Let me 
suggest just a few of the contentious 
issues: 

• Will the Authority exploit the 
seabed minerals itself or license indi- 
vidual companies and states to carry out 
the exploitations? (The United States 
favors the licensing arrangements.) 

• Will the Authority be permitted to 
regulate rates of exploitation and/or to 
fix prices in order to stabilize the 
minerals market and prevent undue 
hardships to the economy of land pro- 
ducers of copper, nickel, cobalt, and 
manganese? (The United States is 
against production and price controls.) 

• How will the Authority be gov- 
erned? What states will be represented 
on the governing bodies? 

• How will decisions be made as to 
allocation of the international funds? 
Will a portion of these funds be set aside 
to run the Authority itself? 



195 



• How will the danger of pollution 
from seabed exploration and exploita- 
tion be handled? 

Some experts contend that no ap- 
preciable revenues will be forthcoming 
from seabed mineral exploitation during 
the decade of the 1970's. It is the 
developed countries which initially 
carry out that exploitation. If the rules 
and regulations on seabed development 
are perceived by them as being too 
onerous, will the developed states ignore 
international procedures and go ahead 
unilaterally with their exploitation? For 
some observers of the Third Law of the 
Sea Conference, this appears to be a 
very real possibility. 

A related and, in my table of organi- 
zation, a separate issue is that of 
revenue sharing from mineral exploita- 
tion on the outer continental margin. 
This is pretty much an exclusive U.S. 
initiative. Several years ago the United 
States suggested the creation of a "Trus- 
teeship Zone" on the continental 
margin beyond the 200-meter isobath. 
In this Trusteeship Zone, which ex- 
tended seaward to the international 
area, the seabed would be under interna- 
tional control, but only the coastal state 
or its lessee could explore and exploit 
the resources. Although the Trusteeship 
Zone concept seemed to have something 
in it for everyone, it received little 
support. 

Now the United States suggests that 
the coastal state have jurisdiction over 
the outer continental margin's resources 
but that a portion of the revenues 
derived from resource exploitation be- 
yond the 200-meter isobath or the 
12-mile territorial limit (whichever is 
farthest from shore) be turned over to 
the international fund. There are two 
advantages to this proposal. First, it 
provides that some funds will become 
available to the International Authority 
in the near future (as soon as the oil 
companies, which are now exploiting 
offshore in a maximum of about 400 
feet of water, move to depths beyond 



656 feet); second, it ensures that some 
portion of the revenues from hydro- 
carbon exploitation on the outer con- 
tinental margin will get to the inter- 
national fund. Surprisingly, this U.S. 
initiative has also met with little sup- 
port-either from developed or develop- 
ing states. 

Arrangements for Dispute Settle- 
ment, the 10th of my 12 issues, is very 
much up in the air. The United States 
strongly supports compulsory settle- 
ment of disputes-an interesting devel- 
opment inasmuch as we have never, I 
believe, taken an international dispute 
in which we were involved for settle- 
ment by the International Court of 
Justice. 

Most of the U.S. draft proposals have 
in them compulsory dispute settlement 
provisions. But many countries are wary 
of this approach. The decisionmakers in 
the settlement process will tend to be 
from the developed states. The costs of 
going to such a tribunal will be difficult 
for poor countries to sustain. The 
number of disputes requiring tribunal 
action may become overwhelming. 
Rather than negotiate seriously, de- 
veloped states may elect to try the 
tribunal route to settlement. Here is an 
issue the outcome of which I have a 
hard time visualizing. It is my under- 
standing that no one of the three 
Committees at Caracas became involved 
this past summer in the dispute settle- 
ment problem. 

Since I have mentioned the three 
Committees, let me elaborate. At the 
Caracas Conference there was, first, a 
plenary session for about 3 weeks dur- 
ing which the Rules of Procedure were 
adopted and delegations were given a 
chance to present their countries' views. 
About 115 delegations availed them- 
selves of this opportunity. By the time 
this plenary session was ending, meet- 
ings were beginning of the three Com- 
mittees. These three were modeled on 
the Subcommittees of the Seabed 
Committee which met six times, 



196 



alternatively in New York and Geneva, 
from 1970 through 1973. 

Committee I was concerned with the 
international seabed area and with the 
Authority which was to be set up to 
manage it. The Committee made no 
tangible progress whatever at Caracas. 
The United States adopted a hard-line 
position on the Authority and held to 
it. Committee III handled Pollution 
Control, Scientific Research, and Tech- 
nology Transfer. It also made little 
progress, although the diverse views on 
research were narrowed down to four 
alternatives, ranging from the "absolute 
freedom" of the Soviets to the "abso- 
lute control" of the Group of 77. 

Committee II, which concerned itself 
with fisheries, straits, economic zones, 
and other jurisdictional problems, was 
under the able leadership of Andres 
Anguilar of Venezuela. While it proba- 
bly had the most complex problems of 
any of the three Committees, it also 
made the most progress. Ambassador 
Aguilar was able to reduce national 
positions on a whole host of issues to a 
series of three or four alternatives for 
each topic and to pave the way for 
serious negotiations on these issues next 
summer. 

The last two issues of my outline 
come under the heading "Regional 
Arrangements." These involve a bit of 
crystal-ball gazing. Multistate regional 
arrangements to date have been very 
limited in scope. There are, for example, 
certain international fisheries organiza- 
tions, but decisive action within the 
framework of many of these is subject 
to the unanimous consent of the parties 
concerned. There are bilateral and 
multilateral agreements (as, for ex- 
ample, the Baltic Sea Pollution Control 
Agreement recently concluded), but 
even these tend to be limited in extent 
and to involve long-established de- 
veloped countries. Yet, should there fail 
to be a global Convention on the new 
Law of the Sea in 1975 (or perhaps 
1976), recourse may be necessary to 



regional agreements -at whatever level 
agreements can be arranged. 

One type of such arrangement would 
be exclusionary in nature; exclude non- 
littoral fishing vessels from the Anda- 
man or East China Seas; keep out 
noncoastal military ships from the 
Baltic or the Sea of Okhotsk. Such 
arrangements cost little to the states of 
the region. But how about situations in 
which the littoral states invest some- 
thing in the future of their common 
offshore waters? They might enact 
common pollution control regulations. 
They might have a common approach to 
fisheries conservation and management. 
They might contribute to a regional 
fund for improving navigational facili- 
ties or eliminating shipping hazards. 
Such moves would be particularly 
appropriate for enclosed or semi- 
enclosed seas. These conditions corre- 
spond to what I referred to earlier as 
"mutual benefit" systems. Within semi- 
enclosed seas, littoral states might agree 
on some mechanism for settling mutual 
boundary delimitation issues in offshore 
waters and for handling other types of 
disputes involving the marine environ- 
ment. 

In contrast with this are what I 
would term "compensatory arrange- 
ments." And here I confess to being 
way out of my depth. It is one thing for 
Tanzania to grant port facilities at Dar 
es Salaam for copper shipments from 
Zambia; it is another to give equal rights 
to the companies of Malawi, Burundi, 
Rwanda, Uganda, and Zambia to share 
in the development of Tanzania's eco- 
nomic zone resources. Pakistan has 
closed the use of the port of Karachi to 
Afghanistan because of border difficul- 
ties. Lesotho is entirely dependent on 
the apartheid-oriented regime of South 
Africa for its access to the sea. Bolivia 
must depend on the vagaries of Chilean 
politics for permission to use the port of 
Arica. Who, I ask myself, is really going 
to agree, as a matter of universal policy, 
to the principle of compensatory 



197 



arrangements for landlocked and other 
geographically disadvantaged states? 
Here is a concept which may require 
decades to work out satisfactorily. It is 
difficult enough to win approval of the 
principle of access to the sea for land- 
locked countries. Much more difficult 
will be the task of gaining support for 
the concept of access by a disadvan- 
taged state to the resources of another 
country's economic zone. 

Having covered, albeit briefly, the 
principal topics at Caracas, let me now 
make a few general observations on the 
Conference as a whole. 

First, what are the prospects for 
some sort of Convention emerging from 
the Third Law of the Sea Conference? 

As I noted earlier, one of the road- 
blocks to any conclusive action in 
Caracas was the absence of deadlines. 
There were almost no serious conces- 
sions made, despite the talk of a "pack- 
age" solution. But if the timetables hold 
(and we do not go on to a 1 976 meeting 
in Africa or Asia -or as The New York 
Times facetiously noted, of meetings in 
Pnom Penh, Ulam Bator, and finally, of 
all places, Philadelphia!), then Geneva 
next spring is where agreement-if it is 
to be reached at all -must be concluded. 
And despite all the complexities and 
uncertainties, it is possible that what 
some observers say is true -namely, that 
the delegations from the major powers 
(including the United States) have in- 
structions from their governments to 
bring home an agreement from the 
Third Law of the Sea Conference, and 
they will therefore work hard to meet 
this requirement. 

It may be only a partial agreement 
on some items. And it may take years 
for even these agreements to be ratified 
and to come into effect. Thus we are 
faced with a protracted period in which 
interim arrangements may be necessary. 
Due to time limitations, I shall not 
dwell on such arrangements, other than 
to note that they will have both interna- 
tional and domestic implications - 



witness the impatience of some groups 
in the United States to proceed with the 
200-mile fisheries zone and deep sea 
mining bills rather than to wait for 
international action on these issues. 

My third and last point is, What 
might the United States expect to 
achieve in the way of its own special 
interests from the Conference? 

Here, I feel, we have to consider 
certain alternatives, one of them being 
that the United States might not sign 
and ratify certain provisions of any 
agreed Convention. I think we may lose 
on the freedom of scientific research 
issue, on international control of highly 
migratory species, and perhaps on the 
issue of full utilization of fisheries in the 
economic zone. If we continue to main- 
tain a hard line regarding the Seabed 
Resources Authority, we may find our- 
selves isolated there as well, and I have 
heard it said we might find it impossible 
to sign and ratify the type of final 
agreement on this issue which proves 
acceptable to a majority of the world's 
states. 

On three items, I just do not know. I 
think it will be extremely difficult for 
us to get general acceptance of com- 
pulsory dispute settlement, and I have 
no knowledge as to what our fall-back 
position on this might be. We may also 
be hard pressed on the pollution control 
issue. Certainly we may have to compro- 
mise somewhat on the rules setting and 
rules enforcing procedures, but there is 
also, it seems to me, the possibility (as 
might also be the case with compulsory 
dispute settlement) that these items 
could be kept aside for some future 
deliberations rather than being em- 
bodied in a 1975 convention. 

Finally -of particular interest to you 
here -is the question of passage through 
straits. My own feeling for this is con- 
tained in two observations. First, there 
are only a limited number of countries 
directly involved in this controversy. If 
it can be kept from becoming an abso- 
lute article of faith on the part of the 



198 



less developed countries (and of Spain) 
and considered in terms of its own 
merits and of the countries it affects, 
then some solution may be possible. 
Second, there are, I believe, only a 
limited number of straits involved in 
the problem -particularly in terms of 
military ships and aircraft. Again, the 
number of players can be narrowed 
considerably and trade-offs may be 
possible, involving not 100-plus 
countries, but perhaps half a dozen or 
so. 

If one examines the Law of the Sea 
negotiations in detail, one finds two 
categories of participants. One are the 
interest groups, geographic blocs, and 
other expressions of multistate soli- 
darity. Second are the ocean interests of 
the individual states themselves -their 
access to the sea and its resources, their 
investments in marine-related activities, 
their dependence on the sea for food, 
income, security, or employment oppor- 
tunities, and their general relations with 
their neighbors or other relevant coun- 
tries. Remember, any state's ocean 
policies are but a part of their total 
national policies. If a state has generally 
poor relations with one or more of its 
neighbors, it can hardly be expected to 



cooperate closely when it comes to 
ocean issues. 

Since the close of the Caracas ses- 
sion, the press has been not altogether 
favorable. Of what use, it is asked, were 
the preliminary Seabeds Committee 
meetings in New York and Geneva if 
nothing tangible came out of 10 weeks 
of high living in South America? What 
can we expect from the money that will 
be spent at Geneva next spring? Some 
of the critics, I think, are unduly harsh. 
Nearly 50 new delegations were at 
Caracas which had not been represented 
previously on the Seabeds Committee. 
There was an enormous educational 
process necessary in Venezuela, and 
despite the absence of tangible agree- 
ments, many of the delegations - 
according to some observers -are a lot 
closer to negotiating positions as a result 
of last summer's experience than they 
were several months ago. But my opti- 
mism declines when I speculate on the 
fact that only 6 weeks or so are allotted 
next spring for concluding a new Law of 
the Sea Treaty. And I am thankful that 
the title assigned to me for this talk was 
"Issues in Negotiations" rather than 
"The Consequences of No Agreement at 
All." 



t 



199 



THE POSSIBLE EFFECTS ON MARITIME OPERATIONS 



OF ANY FUTURE CONVENTION 



OF THE LAW OF THE SEA 



Edward Ashmore 



When the Chief of Naval Operations 
kindly invited me to initiate our dis- 
cussions on this important subject, I had 
hoped that the recent session of the 
conference at New York would have got 
a little further. That progress was made, 
I am in no doubt. I am also in no doubt 
that it is very important that at their 
August 1976 session in New York 
enough progress is made to enable 
governments to agree to the broad terms 
of a new convention which could be 
finalized in 1977. 

But because of this rate of progress, 
it does mean that we can discuss the 
crucial issues the conference has before 
it in an unrestricted way and not feel 
bound by any positions our own govern- 
ments might otherwise by now have 
adopted. Indeed, I must stress from the 
outset that my views are those of a 
professional naval officer, not of a 



maritime lawyer nor of an official nego- 
tiating for his national interests in the 
matter. But it is inevitable that I will 
have frequently to refer to the argu- 
ments that are still taking place in the 
conference for it is these that will 
colour the backcloth against which any 
future maritime operation will take 
place. 

Such operations in such a context are 
of, course, a peaceful exercise of mari- 
time power. I do not address the ques- 
tion of belligerence. 

My theme in this discussion of how a 
new convention might affect future 
maritime operations is that the corner- 
stone of any future convention must be 
the maintenance of the often challenged 
but long established freedoms of the 
seas. I hope to show you that both 
maritime and coastal states stand to gain 
by the maintenance of this concept. 



200 



Freedom of the seas, of course, implies 
not only a freedom of action but a 
responsibility to respect the rights of 
others. I acknowledge from the start, 
and I will go over the ground in more 
detail later on, that we are living in a 
changing world and that there is a very 
reasonable case to be put which calls for 
more careful definition of the rights of 
states on, in, and under the oceans of 
the world. States have every right to 
look to their security and economic 
interests: and the better understanding 
that is reached on these issues, the less 
chance there is of friction and tension. 
A new convention will depend entirely 
on a sound balance of all interests being 
struck. The United Kingdom has both 
maritime and coastal state interests. We 
firmly believe in the maintenance of the 
balance of strategic deterrence and 
depend extensively for our livelihood on 
unfettered contacts with our trading 
partners-we have the third largest mer- 
cantile marine in the world (after 
Liberia and Japan). At the same time, 
our geographical position as an island 
state, separated from our European 
neighbours by the busiest straits of the 
world, on a continental shelf rich in 
hydrocarbons and fish, gives us signifi- 
cant coastal state interests. A balanced 
convention is therefore as vital to my 
country as to any. 

We have only reached this view after 
many years as a maritime nation and in 
common with most of us here could not 
claim to have been consistent in our 
views over the last 2,000 years. Let me 
say something since nothing is new 
under the sun, least of all the ocean, 
about those 2,000 years and the sum of 
human experience they convey to us. 

In the earliest days the sea was 
believed not only to hold inexhaustible 
stocks of fish, which were free for 
anyone to take, but to extend over such 
vast distances that the waters themselves 
could not similarly be taken. What 
could not be taken was free for com- 
mon use by all men. To the Romans 



who enshrined this principle in the 
Justinian Code, such a view was 
probably more a luxury that the un- 
disputed masters of the Mediterranean 
could well afford, since it was unlikely 
that anyone would challenge it, rather 
than an act of liberal statesmanship. 

Nevertheless, after the collapse of the 
Roman Empire there was no major 
change to this principle until the cru- 
sades brought a Europe emerging from 
the Dark Ages into contact with the 
Mediterranean. This stimulus to com- 
merce allowed Mediterranean practice, 
Roman in origin, to spread to the 
Atlantic seaboard, and the rolls of 
Oleron gained immediate success and 
wide recognition among the nations of 
North West Europe. But although these 
codes talked of freedom, this freedom 
began to become discretionary. As 
Mediterranean trade revived in the 13th 
and 14th centuries, the conflicting 
claims of the trading nations on the 
waters around their coasts became the 
dominant issues. 

The Venetians began to charge a fee 
for entering the Adriatic, and Venice's 
chief rival, Genoa, claimed similar juris- 
diction over the Ligurian Sea. In north- 
west Europe, countries made similar 
claims: The Danes, Swedes, and Poles 
claimed various parts of the Baltic and 
the English, with what some of you may 
feel was characteristic expansiveness, 
the channel, the North Sea, and the 
whole of the Western Atlantic. Slowly 
the sea from being free from any juris- 
diction became, like the land, subject to 
the authority of those who had the 
power to enforce that authority. But 
the two great naval powers of the day 
were Spain and Portugal and, using the 
Pope as a maritime arbitrator which had 
the wholly desirable effect of giving 
their claims the authority of God, they 
began to apportion the oceans of the 
world between them so that both coun- 
tries' interests in their newly discovered 
possessions in the Americas, East and 
West Indies, Africa, and India were 



201 



protected. Their dominance culminated 
in the Treaty of Tordesillas which, in 
effect, divided the globe in half; a 
feature which even the Pope had sought 
to avoid. 

With the growth of English naval 
power in the middle of the 16th 
century, her ships began to challenge 
the monopoly of Spanish trade with the 
Indies. The first Queen Elizabeth sought 
to justify the activities of men like Sir 
Francis Drake by an appeal to the 
principle of the freedom of the seas -the 
first time this concept had been ex- 
pressed for four or more centuries. Her 
Majesty refused to concede that Spain 
"had any right to debar British subjects 
from trade or from freely sailing that 
vast ocean, seeing that the use of the sea 
and air is common to all: neither can 
any title to the ocean belong to any 
people." 

While England was having difficulties 
with Spain, Holland, which was also 
increasing in power, was having the 
same difficulties with Portugal. The 
Portuguese cited the Papal Bull of 1493 
in support of their trade monopoly; to 
counter their arguments Grotius wrote 
his famous treatise on the law of the 
sea. He stated quite categorically that 
"Since the sea is just as unsusceptible of 
physical appropriation as the air, it 
cannot be attached to the possession of 
any nation." 

By this time, however, the British 
had forgotten their late Queen's stand 
and her successor, King James I, com- 
missioned John Selden to write a refuta- 
tion of Grotius supporting the concept 
of a closed sea; a principle which was 
duly followed so long as the British felt 
that their interests were best served by 
protecting their trade against foreign 
competition. However, during the 18th 
century there was a slow and gradual 
change in British policy. The old order 
whereby strong maritime powers waged 
war to protect their trade was changed 
by the Industrial Revolution in England. 
There was for a time thereafter no 



foreign competition, and so British in- 
terests were now best served by com- 
pletely free and unrestricted trade. 
Thus, by the early 19th century Britain 
was once again an unequivocal sup- 
porter of the freedom of the seas. 

It seems clear that the policy of the 
superior maritime power, and not for 
the first time, carried the day. When one 
power has been predominant, freedom 
of the seas has been its policy. It would 
be an oversimplification to say that 
when dominance of the sea was in 
doubt nations pursued a policy of 
closed seas which went unchallenged 
until one power again became predomi- 
nant, but it is nevertheless not far from 
the truth. 

Later on I will attempt to show how 
the maintenance of the freedom of the 
seas has developed from being princi- 
pally in the interests of major maritime 
powers to the situation today when it 
safeguards the interests of the interna- 
tional community. 

As trade increased, piracy became a 
growing nuisance on an international 
scale. Initially countries were content to 
rid the seas of pirates harassing their 
own trade while being quite content to 
let them do their worst among their 
rivals. Nevertheless, the consciences of 
some enlightened men and the timing of 
history ensured that piracy and the slave 
trade were suppressed in an era when 
the principle of the freedom of seas was 
being upheld under the umbrella of Pax 
Britannica. It could not have been ef- 
fected in the absence of the freedom of 
the seas, and the dividend this then gave 
is enjoyed by all nations. 

Another example of benefit from the 
freedom of the seas is to be found in the 
contribution to the surveying and 
charting which has been done for over 
200 years by the hydrographic fleets of 
our various countries. Their freedom of 
navigation and their cooperation results 
in world chart series for all the mariners 
of every nation. There is no ship which 
does not benefit from the ability to sail 



202 



and work on the seas of the world with 
hydrographic data which has resulted 
from this very freedom of access. Long 
may it continue. 

That having been said, we all know 
that the law of the sea is not merely an 
affirmation of unfettered freedom The 
freedom of the high seas became a 
regulated freedom through agreements 
by flag states that their ships should 
follow certain rules about safety, avoid- 
ance of collisions, interference with 
submarine cables, and similar matters of 
general concern. It is important to 
recognize, however, that ships were to 
be regulated only by their own flag 
states. 

In more modern times came the 
recognition that the coastal state had an 
interest, and indeed a claim, on the belt 
of water immediately surrounding its 
own coastline. This claim was ultimately 
recognized in the concept of the terri- 
torial sea. The development which 
balanced this concession to absolute 
freedom at sea was the establishment of 
the right of innocent passage through 
the territorial sea. Coastal states 
accepted the erosion of full sovereignty 
implicit in the acknowledgement that a 
foreign ship could not be prevented 
arbitrarily from passing through the 
territorial sea so long as she was doing 
no harm. 

This harmonious compromise was 
further developed by the 1958 Geneva 
Conventions on the law of the sea. What 
started as an attempt to codify all past 
practice, in fact, went further and re- 
sulted in recognition of the increasing 
attention being given to the exploitation 
of the resources of the sea and the 
seabed, and whilst high seas freedoms 
were to a large extent preserved, these 
conventions for the first time addressed 
the rights to exploit the resources of 
continental shelves and the conservation 
of the living resources of the high seas. 

The 1958 Geneva Conventions have, 
I believe, served the international com- 
munity well. The listing of the freedoms 



of the high seas was useful, as were the 
provisions concerning nationality for all 
ships, piracy, and slave trading. So also 
were the definition of innocence of 
passage in the territorial seas as being 
not prejudicial to the peace, good order, 
and security of the coastal state; the 
definition of the rights of hot pursuit; 
and the safeguarding of the right of 
passage through straits. There were also 
many other valuable provisions relating 
to navigation and resource exploitation. 
But there were major omissions too, the 
most far reaching being the failure of 
the 1958 conference to agree on a 
maximum breadth for the territorial sea 
and the failure to set objective limits to 
coastal state rights in respect of fisheries 
and the continental shelf. The large 
increase since 1958 in the number of 
merchant ships sailing under flags of 
convenience has also called into ques- 
tion whether dependence on flag state 
regulation is sufficient to safeguard 
coastal state interest. 

The main pressure for a new law of 
the sea convention has, however, been 
generated by the increase of man's 
knowledge associated with a desire to 
exploit the resources of the sea and the 
seabed. "The common heritage of man 
should be used for the benefit of man- 
kind as a whole" is a popular cry. If we 
are to use the seas and the resources in 
and under the sea for the benefit of the 
international community in an orderly 
fashion, we must aim to reexamine and 
strengthen existing law to fit today's 
circumstances and fill in the gaps in the 
1958 conventions that I have already 
mentioned. 

There are, of course, a number of 
ways of doing this, and it is precisely 
because of this fact that negotiations in 
the conference directed toward reaching 
a consensus have been prolonged and 
difficult. A position somewhere be- 
tween the somewhat imprecise but 
possibly, maritime oriented regime that 
came from the 1958 conventions and 
those states who have been calling for 



203 



extensive coastal state sovereignty and 
jurisdiction must be found. 

We must not be discouraged by the 
length of negotiations on this complex 
subject. Each member state of the 
United Nations surely has to attend to 
its own immediate needs before acting 
as a member of the international com- 
munity to safeguard the broader world 
interest. 

With good reason coastal states are 
concerned with sovereign rights, and the 
obvious proof of the growing concern 
for this is to be found in the large 
increase in the number of states now 
claiming a wider territorial sea. The 
numbers have increased markedly since 
1958. Some states believe that an exten- 
sion of sovereignty over the sea is an 
essential safeguard to their security. 
There is much public discussion of 
security, both in the defense or military 
sense and also in the civil or police 
sense. Many newly emergent and 
emerging states think of increased 
sovereignty as an essential precursor of 
economic well-being. Many states also, 
and my own is no exception, look to 
the wealth of the natural resources of 
the continental shelf to contribute sub- 
stantially to economic well-being and 
are showing a real concern about con- 
servation of fish stocks and an under- 
standable feeling that they should have 
prime responsibility for assuring the 
future of a resource they claim for their 
own country. However we must remem- 
ber the other side of the coin. 

This is that to extend the frontiers of 
sovereignty is at the same time to 
increase the burden of national security 
and certainly not to make it easier. If 
we are to develop new laws, we must 
ensure that either the coastal state or 
the international community has the 
ability to enforce them. Laws that 
cannot be upheld fall into disrepute and 
are certain sources of international fric- 
tion. While I well understand the 
importance of the work being done in 
the present conference on the 



settlement of disputes, I am sure we 
would rather that its aim should be a 
consensus likely to minimize the occur- 
rence of disputes. Moreover, it is 
axiomatic that the greater the area of 
the continental shelf or greater the 
volume of water that the coastal state 
can lay claim to, the less the resources 
freely available to others. 

One of us here represents a land- 
locked state, and there are others 
amongst us whose countries say that 
they are geographically disadvantaged. 
Any view that the seas are free requires 
that the rights of every member of the 
international community be considered 
in drawing up the balance between the 
interests of the coastal state and the 
community as a whole. There is no 
shortage of public discussion on this 
either. 

Coastal states have a third interest 
which is gaining in importance as the 
worldwide lobby for the protection of 
the environment grows. None of us here 
would quarrel with the need to take 
every reasonable precaution to minimize 
the risk caused by collisions and ground- 
ings or by poor construction of ships. 
Pollution control, too, is listed high in 
the requirements of all these days. It is 
an important matter which the con- 
vention must address. 

I mentioned earlier that flag states 
had come to accept the need for certain 
rules to guide the conduct of shipping. 
An amalgam of these rules on safety, 
the avoidance of collision and pollution 
control add up in many minds not 
merely to the maintenance of good 
order but to the need for traffic regula- 
tions as the means of assuring it. Sea- 
lanes and traffic separation schemes do, 
of course, have a valuable part to play. 
The United Kingdom and France believe 
that they have already been instru- 
mental in improving traffic conditions 
in the Dover Strait, and they look 
forward to the observance of these 
schemes becoming mandatory. I would 
welcome also the establishment of 



204 



similar schemes in other busy shipping 
areas around the world. Latterly the 
International Maritime Consultative 
Organization (IMCO) has taken the lead 
in initiating international conventions in 
this broad field of good order at sea. 
However, IMCO neither lays down nor 
enforces law. Governments use the 
IMCO machinery to conclude agree- 
ments, and it is their responsibility to 
give these agreements the force of law. 
Should we not agree to urge our govern- 
ments to place their trust in IMCO and 
make proposals to it? Furthermore, 
should we not also agree that we should 
urge our governments to ratify conven- 
tions agreed through IMCO and to 
enforce rigorously the ensuring legisla- 
tion? 

The international community cur- 
rently accepts that outside the terri- 
torial sea it remains the flag state's 
responsibility to enforce regulations on 
their own shipowners and masters. To 
overcome the laxity of some flag states 
and in particular to regulate those ships 
that sail under a flag of convenience, it 
may be necessary to introduce a dif- 
ferent enforcement regime. Considera- 
tion should be given to what seems a 
very sensible idea that a form of port 
state jurisdiction may well provide a 
better balance between the interests of 
the coastal state and those of the 
international community, the theory 
here being that a coastal state whose 
regulations have been flouted and who 
does not have confidence that the flag 
state will take appropriate action will 
appeal to the state into whose port the 
offending ship next calls to prosecute 
that ship. 

Let me now summarize the coastal 
state's interests as I have outlined them 
to you. They amount, I suggest, to "a 
requirement to extend their sovereignty 
and jurisdiction into the sea area and on 
to the continental shelf, adjacent to 
their shores so as to ensure their state's 
security, militarily, economically and 
ecologically." 



I have previously laid emphasis on 
the meeting of these justifiable aims 
while preserving the natural maritime 
rights of the international community as 
a whole. Furthermore, in examining the 
history of those rights, we saw how we 
arrived at the basic doctrine of high seas 
freedoms on the back of maritime 
power. In the remainder of my talk I 
would like to show that these freedoms 
developed in the last 150 years now 
safeguard the rights of the international 
community. 

The high seas freedoms stipulated in 
the 1958 convention were the freedom 
of navigation and overflight, the 
freedom to fish, the freedom to lay 
submarine cables and pipelines, and 
other generally recognized and cus- 
tomary international freedoms. 

I would like to dwell for a while on 
what to us, as mariners, must be the 
most important aspect, "freedom of 
navigation and overflight." 

We are not in this convention ad- 
dressing the historic rights of warships 
in time of war. Nevertheless, in spite of 
the fact that I have barely mentioned 
any military matters so far, I still see a 
very clear role for the military in the 
wake of a new convention. We are all 
here because our countries deem it 
necessary to maintain navies for reasons 
of national security. Warships have 
traditionally been involved with main- 
taining the freedom of navigation of 
merchant ships, and we would claim 
that the deployment of our navy in 
support of trade has been a stabilizing 
factor in increasing world prosperity. 

In the past the number of ships 
engaged in trade that plied the seas was 
miniscule compared with the number 
today. Under the umbrella of high seas 
freedom and as the economies of the 
countries of the world partly under 
imperial influences expanded during the 
19th century, trade began to flow in all 
directions. This expansion has accel- 
erated as the colonial empires have 
waned and the colonies and pro- 



205 



tectorates have become independent 
countries. With the growth of interna- 
tional companies and the complex 
economic relations that exist today, the 
very foundation of our society depends 
for its future on economic efficiency. 
To carry cargo by sea is and will remain 
in the foreseeable future the most cost 
effective manner of trading. We see 
examples everyday of the world's de- 
pendence on energy supplies, and the 
battle against poverty and starvation can 
only begin to be tackled with any hope 
of success if trade across the sea is 
allowed to proceed about its lawful 
occasions, unhampered and unmolested. 
Economic stability is intrinsically 
bound up with the balance of power 
and in this imperfect world in which we 
live the balance of strategic deterrence is 
of the utmost importance. We surely 
must accept the fact that navies have a 
part to play in maintaining that balance 
of power and that they must operate 
and train in the areas in which they 
need to exert their power. These areas 
coincide with the world sea routes 
which, in many cases, pass through what 
we expect to become economic zones. 
Efforts in the past to declare zones of 
peace have much to commend them, 
but they will never be zones of peace 
for all the fine words that are spoken 
unless we can be confident that no one 
will cheat. Let us not delude ourselves, 
we cannot be certain of that today. No 
doubt we all look forward to the day 
when world tensions are eased and that 
the opportunity occurs for the major 
alliances to scale down the effort de- 
ployed to maintain this strategic bal- 
ance, but we must deal with things as 
they are and not as we would wish them 
to be. Meanwhile we should, I think, 
take advantage of the phenomenon that 
we are in the presence today of an 
expanding maritime power, which is far 
from achieving that position of mari- 
time dominance that I have historically 
associated with allegiance to the 
freedom of the seas and which seems to 



be content, for reasons which are not 
yet clear, to support a doctrine of 
maritime freedom. 

I have now outlined to you why I see 
a requirement for the coast states' needs 
to be put in perspective with the re- 
quirements to safeguard the rights of 
the international community. 

Let us then assume that we achieve 
an acceptable balance of interest in an 
internationally agreed convention. The 
need will then arise for coastal states to 
evolve internationally acceptable 
methods of enforcing the laws which 
they will be entitled and indeed have a 
duty to enact. 

Varying historical and constitutional 
factors will influence the way different 
countries tackle the task. It would be 
wrong to assume that there is a single 
correct way and if others do not do 
things in the way we do, either they or 
we are in error. I would like to explain 
to you how we in the United Kingdom 
see ourselves undertaking this. We could 
have established some kind of force on 
the lines of the U.S. Coast Guard and 
this may be an attractive model for 
many countries to follow. We have, 
however, decided to meet our expected 
increased responsibilities by the devel- 
opment and improvement of the exist- 
ing pattern involving continuing co- 
operation between the civil authorities 
concerned and our Armed Forces rather 
than by some radical change. The Royal 
Navy has for many years provided ships 
for fishery protection duties, and 
though the extent of this task will 
increase, it will hopefully be carried out 
in an atmosphere of international 
accord. 

As regards fixed offshore installa- 
tions, these are of course subject to the 
normal external threat posed by another 
power and in this respect we see the 
services defending them within the 
framework of their normal function to 
defend the realm. But today we face an 
increasing threat from terrorists. Many 
people advance the theory that an oil 



206 



platform, like an aircraft, is an attractive 
target for hijackers wishing to gain 
publicity. Around our shores, in the 
stormy waters of the North Sea and off 
the Coast of the Shetlands, to hijack an 
oil rig to make a political point such as 
demanding the release of political 
prisoners would be very difficult and 
require considerable skill and resources. 
There are many targets associated with 
the oil and gas industries ashore which it 
would be much more easy to tackle. 

Nevertheless, there is a threat, and in 
our view that is best met by mounting 
deterrent patrols by ships and aircraft. 
Sophisticated ships are not needed for 
this. The important thing is to deploy 
ships with good seakeeping qualities and 
good communications. If the ships and 
aircraft can be seen and heard they 
deter, and if any incident occurs they 
have the ability to get to the scene 
quickly and observe and report. This is 
also a priceless asset in the event of an 
accident. A new convention will, we 
assume, confirm the existing entitle- 
ment of the coastal state to establish 
safety zones around installations on its 
continental shelf and even enhance their 
status. In the light of this we envisage a 
requirement to operate a force of about 
eight ships backed up by fixed wing 
surveillance aircraft and shorebased heli- 
copters to undertake concurrently 
fishery protection and deterrent patrols 
in the area of offshore installations. We 
have chosen a 200-foot lightly armed 
ship of about 1,300 tons to fulfill these 
tasks. In the poor weather conditions 
around our coasts we have decided that 
an all-weather capability is more im- 
portant than high speed, and thus the 
fast patrol boat, an attractive option for 
many countries, is not a realistic one for 
the United Kingdom. 

We also envisage these ships being 
useful in reporting incidences of pollu- 
tion and for assistance in maintaining 
good order in traffic separation 
schemes. Here our aim is to advise 
shipping on the state of traffic so that it 



can more easily follow the traffic sepa- 
ration scheme. We have not found it 
either practical or desirable to attempt 
to positively control the traffic, be- 
lieving that no sea captain would take 
kindly to being controlled from shore 
and that an attempt to do so would be 
likely to lead to more radio assisted 
collisions than it avoided. 

In all these tasks we see our forces 
being used to safeguard our coastal 
states' rights and at the same time to 
ensure that the rights of the interna- 
tional community will be served as 
well- they will be there to monitor and 
report. The legal action that ensues 
from any incident they observe will be 
taken up by the civil authorities. 

Maybe in due course an international 
force should be set up to carry out these 
tasks. Perhaps regional arrangements can 
be expanded. We already have in the 
Northeastern Atlantic a fisheries con- 
vention whereby some 14 countries 
(both East and West) agree to the 
monitoring of each other's fleets by 
fishery protection ships flying an inter- 
national fishery protection flag. 

But before that kind of situation can 
become commonplace we must achieve 
an agreed and acceptable convention. 
Inevitably there will have to be compro- 
mises. Some may not be to the liking of 
the coastal states who may feel that 
their sovereignty, their ability to exploit 
their resources, is weakened. Some may 
not wholly suit the maritime powers 
who will find rights and privileges long 
taken for granted will become condi- 
tional. And in the balance it will be the 
coastal states who will have the major 
increase in the responsibility for safe- 
guarding all our rights in their waters. 
Those of us who know how very seri- 
ously the progress of mankind can be 
hampered by failure to resolve issues 
such as those the convention has to 
address can only wish the negotiators 
well. I do not think I would be guilty of 
heresy if I said that it would be nice to 
think that the convention would put all 



207 



us naval men out of a job, that there 
would be no need for armed forces at 
sea. But, as things stand today, there 
can be little prospect of this, and only 
by maximizing the flexibility of 
maritime forces can the burden they 
impose on national economies be 
reduced. 

Against this background of a future 
where the rights and responsibilities of 
maritime and coastal states will need 
some degree of enforcement and a 



future where power politics may make 

the movement of naval forces a sad but 
necessary condition of preserving 

peace and good order, may I suggest 
that we could usefully discuss the 
following points amongst ourselves: 
the rights and duties of warships 
under a new convention; the en- 
forcement of the laws at sea; and the 
need to continue to operate and train 
in key areas to maintain the balance 
of deterrence. 



t 



208 



INTERNATIONAL LAW OF THE SEA 



A REVIEW OF 



STATES' OFFSHORE CLAIMS AND COMPETENCES 



L.F.E. Goldie 



INTRODUCTION 

The sea constitutes some 70 percent 
ol the Earth's surface. It and its riches 
have always challenged or charmed men 
into seeking to gain a livelihood from 
it— frequently at great risk. From classi- 
cal times and even earlier, sympathetic 
magic, religion, and law have regulated 
man's uses ol the sea. Today, however, 
as never before, science; engineering and 
available capital are permitting new ex- 
ploitations of the maritime environment 
and new means of saining wealth, re- 
spcet, knowledge, adventure, and 
power. As technology and investment in 
ocean activities progress, the legal rules 
which were evolved to meet less com- 
plex uses will have to be strained as tin; 



outer limits of their purposes are passed 
and the necessary congruence between 
social fact and relevant legal concept 
become increasingly attenuated. Hence, 
unless new rules are formulated, either 
social lacls created by the new maritime 
economic investments and technological 
developments will become dislocated or 
the existing rules debased into legal 
fictions. In either case those rules an; 
transformed into impediments to fur- 
ther progress, cither through their ri- 
gidilv or through the uncertainties 
which fictions inevitably generate. 

The international law ol the sea lacks 
the many essential institutions and rules 
and even, to a large extent, the neces- 
sary language for effectively managing 
the maritime resources now or shoiiK 



209 



to become available lo man. Accord- 
ingly, it threatens to prove inadequate 
as an impartial framework of claim and 
decision for equitably distributing com- 
petences, titles, rights, and values with 
respect to those resources and wealth, 
science, and technology that may de- 
velop from them. 

This article will provisionally survey 
and appraise the main patterns o( the 
traditional rules and institutions and 
critically indicate some novel state 
claims to exercise exclusive authority 
over offshore; areas which have histori- 
cally lain within the zones of the free 
and common high seas. 

Traditionally, international law has 
divided the seas into two great legal 
categories: those under the sovereignty 
of coast states, for example, internal 
waters and territorial waters, and those 
beyond the sovereignty of any state and 
which are common to all states, these 
have been historically designated as the 
"free high seas." At the present time a 
number of new categories of state 
claims seeking to exercise exclusive 
coastal stale authority over additional 
sea areas are being brought within the 
same class of exclusive jurisdictional 
claims as the traditional territorial sea 
and internal waters (including historical 
waters). These wen; unknown to tradi- 
tional international law. Those which 
are receiving international legal recogni- 
tion embrace: contiguous zones; special 
fisheries zones; zones of special jurisdic- 
tion, for example, customs zones; and 
zones in which exclusive control is 
claimed for various kinds of weapons 
testing (this last still including, in the 
case of France, nuclear and hydrogen 
weapons testing in maritime areas). In 
addition to the sea areas subject to the 
recognized claims of states, there are 
lawful seabed claims extending beyond 
territorial limits, namely those over 
adjacent continental shelves. Again, in- 
creasingly states are establishing con- 
servation zones by agreement. There are 
other types of coastal state claims which 



currently lack, even in this generally 
permissive world, the necessary recogni- 
tion and acceptance that is essential to 
erect them into customary law con- 
cepts, namely the Chile-Fcuador-Pcru 
(CEP) claims and the "archipelago" 
claims of Indonesia and the Republic ol 
the Philippines to draw baselines around 
their island systems from their outer- 
most headlands and islands. 

MARITIME ZONES OF 
EXCLUSIVE STATE COMPETENCE 



Internal Waters. In law, the status of 
internal waters tends to be assimilated 
to that of the land of the coastal state. 
That is, coastal states' authority with 
respect to seas which are classified as 
internal waters is, juridically speaking, 
assimilated to the sovereign authority 
over their land territory— except insoiar 
as the nature of the actual quality of the 
watery medium or element may impose 
factual as distinct from juridical differ- 
ences. These waters include historic- 
bays and bays with straight base or 
closing lines of less than 24 miles 
breadth. Examples of historic bays 
abound: Chesapeake Bay is a very long- 
standing one. Again, when the State of 
California desired to establish tin; status 
of Santa Monica Bay as a historic bay, 
for the purpose of the Submerged Lands 
Act of 1953, 6 she did so to ensure that 
its waters would not be characterized as 
territorial seas, but rather as internal 
waters. A consequence of such a holding 
would be to bring the submarine oil 
deposits of the bay and those out to 3 
sea miles from the closing line of the 
bay under the State of California rather 
than the United Stales. When the U.S. 
Supreme Courl found against California 
—in effect by deciding that Santa 
Monica Bay constituted part of the 
territorial sea of the Uniled Slates 
rather lhan the internal waters of Cali- 
fornia— il permitted California lo draw 
her seabed rights under the Submerged 



210 



Lands Acl only 3 miles from the low- 
walcr mark. 



contiguous zones), depending on loca- 
tion. 



Ports, Harbors, and Roadsteads. 
Porls, harbors, and roadsteads present a 

complicated picture. While ports and 
harbors are nearly always internal 
waters, roadsteads may be territorial 
waters or high seas. Coastal states have 
full control over (since harbors and 
ports fall within the category of internal 
waters) all vessels and activities within 
their ports and harbors. On the other 
hand, history and comity have brought 
them to subscribe, for reasons of con- 
venience and reciprocity, to policies 
which recognize that control over the 
domestic discipline of ships in their 
harbors should be left to their masters, 
and so be governed by the laws of the 
Hag stale unless a matter involving the 
peace of the port is involved. What 
amounts to a matter involving the peace 
of the port is always for the port slate 
to determine, for the flag stale's 
authority results from the port state's 
discretionary withdrawal of jurisdiction 
for purposes of convenience, reci- 
procity, and amity. The flag stale docs 
not enjoy an international privilege or 
immunity within the ports of coastal 
states. Hence, in strict theory, the port 
stale is entitled to Ireat all matters 
which affect the "peace of the port" as 
beyond its discretionary withdrawal of 
authority and subject to its domestic 
laws. Furthermore, il is not required to 
submit to, or permit, polluting and 
other harmful activities or activities 
contrary to its heallh and quarantine 
laws in its harbors contrary to its laws 
and policies. 

Roadsteads are different from ports 
and harbors. They may fall within the 
regimes of either internal waters or the 
territorial sea or even the high seas 
(although this latter is doubtful since 
the historic regulation of traffic in the 
roadslead and its use for quarantine and 
customs inspection purposes will 
generally place such regions under 



The Territorial Sea. This category is 
distinguishable from ports and harbors 
as well as from internal waters in that, 
while the territorial sea is subject lo the 
sovereign power of the coastal state, it is 
also subject to the rights of shipping 
which may navigate freely through it- 
provided that navigation "is innocent." 
As traditional language phrases this 
situation, ships may exercise the right of 
innocent passage through the territorial 
sea of coastal states. Innocent passage 
may also be exercised by warships, 
according to the U.S. doctrine and 
according to the Geneva Conventions on 
the Territorial Sea and Contiguous 
Zones. This view of the right of 
innocent passage was shared by the 
International Court of Justice in the 
Corfu Channel Case. On the other hand, 
the Soviet Union does not recognize 
that warships are entitled to enjoy the 
right of innocent passage. But the 
Soviets' position on this is not al- 
together clear, as on so many other 
points of international law. Although 
ships may exercise the right ol innocent 
passage, aircraft may not. Finally, ships 
may lose their right of innocent passage 
il during transit they disturb the peace; 
of the coastal state in any way or engage 
in activities which are "non-innocent." 
Clearly, this would include any activities 
which the coastal stale may regard as 
polluting its territorial or maritime en- 
vironment, in addition to the more 
traditional criteria which turn on the 
peace, order, and good government of 
the coastal slate. 

At one time there was a widespread 
belief that the territorial sea was, with 
certain specific exceptions due to local 
practice, 3 miles in width. This belief in 
the uniform distance of the territorial 
sea received a mortal blow at The Hague 
Codification Conference 1930. The 
United Nations Conferences at Geneva 
on the Law of the Sea in 1958 and 



211 



I960, respectively, witnessed its death 
and burial. No agreements on any alter- 
native distances have been achieved. 
Although some unquenchable optimists 
seek to assure us that the 1960 Con- 
ference asserted the existence ol a "cus- 
tomary law" rule providing that states 
may assert their authority over a 6-mile 
territorial sea witli a further 6-mile 
contiguous zone added thereto (the 
so-called "6 + 6 rule"), state practice 
points in the opposite direction. Today 
many stales would appear to claim 
whatever breadth of territorial sea 
which may appear leasible, or even 
desirable, to them. At least international 
law would not seem to provide them 
with guidelines in the matter.* 

Contiguous Zones. This legal cate- 
gory of seas under international law is 
distinguishable from the territorial sea 
on a basis which has been widely and 
surprisingly misunderstood. Many inter- 
national lawyers tend to assimilate it to 
the territorial sea and refuse to make 
meaningful and necessary distinctions 
between these two regimes of offshore 
waters. In this they are completely and 
clearly wrong. Contiguous zones, 

properly defined, consist of areas of 
waters offshore over which slates may 
exercise specialized jurisdictions for 
specific purposes having direct or im- 
mediate effect within the territorial sea, 
internal waters, or adjacent dry land. 
For example, during Prohibition the 
United States proclaimed a contiguous 
zone for a width of 12 sea miles. Its 
purpose was to prevent "rumrunning." 
Since this zone extended beyond the 
limits of her territorial sea, U.S. Cus- 
toms and other Federal authorities only 
exercised jurisdiction over ships on the 
free high seas, but within the zone, and 
provided only that their destination was 
within the United States. If a ship was 
navigating, say, from Halifax to Havana 



*Sec Appendix I. 



without stopping at any intervening 
U.S. ports, and even though she made 
her progress through this particular 
stretch of waters off the U.S. shores, the 
U.S. authorities could not lawfully exer- 
cise any jurisdiction over the carrying, 
or even the drinking, of liquor aboard 
her; provided, of course, she was not an 
American-flag vessel. 

The confusion is compounded today 
because the Geneva Convention on the 
Territorial Sea and Contiguous Zones 
limits the extent seaward of contiguous 
zones to 12 sea miles. The assumption 
underlying this limitation was thai terri- 
torial seas would be no more than 3, or 
at the most, 6 sea miles in breadth. 
Since then, however, an inexorable 
trend has developed whereby a number 
of states have been claiming the outer 
limits of their territorial sea to be 12 sea 
miles and even beyond. Accordingly, 
the 12-milc limit of the contiguous zone 
is losing its significance as a means lor 
expanding out from the low- water mark 
coastal stales' specific claims to exercise 
specialized authority over events having 
direct results ashore. The 12-mile limit 
placed on such zones assumed the exis- 
tence of a considerably narrower terri- 
torial sea. 

In addition, there are contiguous 
zones which musl be recognized and 
respected which extend far beyond 12 
sea miles from the shore. For example, 
the United Stales has for a long period 
of lime exercised authority over special 
customs zones and other special areas 
for distances of over 60 miles from our 
shores. Then there is also, of course, the 
AD1Z (Aircraft Defense Identification 
Zone), which is, to my way of thinking, 
an application of the contiguous zone 
concept under unique conditions. This 
zone extends some 500 sea miles off- 
shore and provides for jurisdiction over 
aircraft only when they are approaching 
and intend to land within (he United 
States. In the context ol pollution and 
environmental protection, coastal states 
may, under general international law, 



212 



only exercise authority to prevent pol- 
luting activities whicli have an impact 
on their land territory, internal waters, 
and territorial seas. They are not en- 
tilled to vindicate, in the contiguous 
zones, the universal moral claim lor 
unpolluted high seas (or even con- 
tiguous zones!). 

The Continental Shelf. The maritime 
zones I have discussed so far— apart 
from some types of contiguous zones- 
would all appear to he relatively tradi- 
tional in nature. Although, in its general 
terms, the Continental Shelf Doctrine 
has come to be recognized as a form of 
customary international law, it is of 
relatively recent provenance. 

Insofar as the Continental Shelf Doc- 
trine (and the Convention which em- 
bodies it) reflect an acceptance' of the 
inevitable by international lawyers, 12 
one may regretfully assume, once tech- 
nology made exploitation of submarine 
areas beyond territorial waters possible, 
that the ordy remaining question was 
how lar out from their shores coastal 
stales would be permitted to extend 
their jurisdiction over the resources of 
the seabed and subsoil, and at what 
point offshore the free high seas would 
provide a common regime. In either 
case, the environment is the main 
casualty. Where the fatter rules, the 
tragedy ol the commons provides the 
theme. In the case of the former, as the 
oil blowout in the Santa Barbara Chan- 
nel in January 1969 and subsequent 
blowouts and fires in the Cull of 
Mexico well illustrate, slates are laggard 
in controlling pollution-prone activities. 
Be that as it may, political events arising 
out ol the Union Oil Company's "mis- 
calculation" in the geology of the Sanla 
Barbara Channel tend to illustrate thai a 
coastal stale may more easily be held 
accountable for its actions in its own 
adjacent continental shell region by a 
national constituency dedicated to pro- 
tecting the environment than il would 
regarding activities on the high seas. 



Such a constituency can generate more 
authority, it would appear, when it 
insists on its own polity's responsibility 
toward its continental shelf areas than 
when such areas are not open to be 
exploited by the nationals of other 
states who arc in a position to invoke 
the freedom of the common high seas 
and seabed. 

What is the continental shelf? First, 
it is necessary to distinguish between 
the physical geographical shelf, which is 
purely descriptive, and the legal idea of 
the shelf. The latter is the child of 
policy and is prescriptive. First, the 
concept in physical geography. Fvcry 
dry landmass stands upon a pedestal 
which plunges down into the ocean 
abyss. The geological formation of this 
pedestal begins, generally speaking and 
with certain dramatic exceptions (for 
example, the west coast of South 
America and parts of the California 
coast, the coast ol British Columbia and 
the southern coast ol Alaska), as a fairly 
gentle gradient, or shoulder, extending 
out Irom the dry land under tin' sea to a 
point marine geographers have named 
the "break in slope." The seabed oil the 
northwest coast ol Australia, oil the 
northern shores ol the Soviet Union, 
and off the east coast of China provide 
examples of where the submarine 
shoulder has a very gradual gradient. 
These shelves extend out over 100 
miles, and in some cases several hundred 
miles, before the 200-meter isobath is 
met. It is of interest to note that the 
Senkaku Islands (where a major oil find 
was made about 2Vi years ago) would 
appear to be on the geographical shelf 
off mainland China. A dispute is brew- 
ing as to whether they are also ex- 
clusively within the mainland Chinese 
legal continental shelf. 

Be the physical contrasts between 
the submarine regions off the western 
shores of South America and those off 
the eastern shores of China as they may. 
geographers tell us that standardly the 
break in slope between the continental 



213 



shell and the continental slopes may 
occur at any point between 35 and 400 
fathoms— or even 500 fathoms. But 
most frequently it seems to occur at 
around 100 fathoms or 200 meters of 
depth. (Lawyers have argued— in order 
to impose uniformity of measurement 
on a geographical concept which can 
only be accurately measured with diffi- 
culty and evidences no uniformity — that 
no matter where the break in slope may 
in fact oceur, the continental shelf's 
legal boundary should be eonstituted by 
the 200-metcr bathymetric contour line 
or isobath.) Beyond the break in slope, 
the shoulder disappears and the land- 
mass tends to plunge into the ocean 
abyss at far steeper gradients. At its foot 
the pedestal meets the bed of tin; ocean 
tloor at depths of between 3,500 and 
4,500 meters. Here a major geological 
change lakes place. The chemical and 
geological formation of the seabed is 
different qualitatively from that of both 
dry land and the pedestal. 

Secondly, although the legal defini- 
tion of the continental shelf is enshrined 
in article I of the Continental Shelf 
Convention, this definition has a far 
wider reach of legal authority than 
merely among the states who have 
ratified the treaty. In J 969 the Interna- 
tional Court of Justice laid down, in the 
North Sea Continental Shelf Cases, l 
that the first three articles of the 
Convention codified preexisting cus- 
tomary international law. Accordingly, 
these provisions reflect norms binding 
on all states and not merely the ad- 
herents to the treaty alone. 

Article I of the Continental Shelf 
Convention defines the outer limits of 
the legal continental shelf as being 
either at the 200-meter bathymetric 
contour line or, alternatively, where, 
beyond 200 meters of depth, the re- 
sources of the seabed are exploitable. 
This is an extremely open-ended defini- 
tion; so much so that organizations like 
the National Petroleum Council are now 
arguing that the; "true''' location of the 



continental shell's outer limits under 
international law is not at the break in 
slope or shoulder of the shelf, let alone 
at the 200-metcr bathymetric line indi- 
cated by article 1 of the Convention, 
but at the place of geological change, 
namely the foot of the pedestal and just 
beyond— this area being known as the 
continental rise. The National Petro- 
leum Council's proposal for a definition 
of the shelf, not in terms of the 
200-meter bathymetric contour line but 
of one which lies between 3,500 and 
4,500 meters is the result of a seemingly 
plausible, but overclaborate, juggling 
with the "adjacency" and "exploit- 
ability" tests which article 1 of the 
Continental Shelf Convention provides. 
This prestidigitation has been due to the 
unrcflcctiveness of those who have 
sought to give "exploitability" its 
meaning and operational significance at 
which submarine holes can be drilled, 
regardless of the consequences— a singu- 
larly gross appraisal in this day and age 
when "exploitation" and its grammati- 
cal variants arc tending to become 
pejorative terms. 

The Santa Barbara Channel disaster 
of January-April 1969 14 underlines for 
us all that it is easier to drill a submarine 
oil well than to cap it after a blowout. 
Again, if newspaper reports of the lire 
and blowout at the Chevron Oil Com- 
pany's well near Venice, La., are any 
indication, the lessons of Santa Barbara 
have not yet been learned. In my 
comments on Senator Pell's Senate 
Resolution 33 of I969, 16 1 proposed 
that: 

Senate Resolution 33 should con- 
tain a pledge that no exploration 
or exploitation activities will be 
espoused or licensed by states, or 
by any international organiza- 
tions, at depths greater than the 
feasibility of closing of blow-outs. 
Nor should pipelines be permitted 
below . . . depths (at which they 
may be rapidly repaired]. 1 7 
The pledge referred to in this quo- 



214 



lalioti is, of course, a promise by stales 
who become parlies to the "Declaration 
of Legal Principles" which Senator Pell 
included in his resolution that they 
would promulgate the necessary domes- 
tic legislation to prohibit drilling wells 
and pipelines below the depths of rapid 
and complete repair. Indeed, while "ex- 
ploilability " remains a test for deter- 
mining the outer limits of the continen- 
tal shelf, the technological capacity to 
control the consequences of drilling 
holes in the seabed, rather than the 
mere capability of promiscuously in- 
flicting them on the long-suffering en- 
vironment, should set both the outer 
limit of exploitations and of the mean- 
ing of "cxploitability" as a criterion of 
the extent of coastal stales' continental 
shelves under arliclc I of ihe Continen- 
tal Shelf Convention. 

Article 2 of the Continental Shelf 
Convention tells us that states may only 
exercise "sovereign rights" for the pur- 
pose; of exploring their adjacent con- 
tinental shelves and exploiting their 
"natural resources." Neither custom nor 
the Convention furnish coastal stales 
with plenary sovereignly over their 
shelves, merely specific competences lor 
the purpose ol regulating exploration 
and exploitation activities with respect 
to "natural resources." And even this 
category is limited, applying only to 
minerals and "sedentary" species of 
living resources— namely "organisms 
which, at the harvc stable stage, either 
are immobile on or under the seabed or 
are unable to move except in constant 
physical contact with the seabed or the 
subsoil" (article 2, paragraph 4). This 
definition has, as we may expect, given 
rise to an amusing il acrimonious dis- 
pute between Japan and the United 
Slates. We claim that the Alaskan king 
crab is a resource of the Alaskan conti- 
nental shelf and, since il is a bottom 
crawler, is exclusively our resource. The 
Japanese claim thai they can produce 
divers who can teslily that they have 
seen tin; animal swimming. All this 



seems rather reminiscent of the medi- 
eval philosophers disputes over how 
many angels could dance on the point 
of a pin. 

CATEGORIES OF EXCLUSIVE 

COASTAL STATE CLAIMS, 

NOT RECOGNIZED BY 

INTERNATIONAL LAW 

The Chile-Ecuador-Peru (CEP) 
Claims. 

Declaration of Santiago. The 
Latin American States have not formu- 
lated any regional conservation regime 
in terms of the 1958 Geneva Conven- 
tion on Fisheries and Conservation of 
the Living Resources of the High Seas 1 
or those of proposals lor fisheries 
management. On the other hand, the 
basic instrument of CEP policies, the 
Declaration of Santiago, imperfectly, 
and perhaps on a number of mistaken 
premises, has sought to express a Latin 
American felt need for a regional solu- 
liou of the problems created by per- 
mitting the fishery of the Humboldt 
(Peru) Current to be no more than a 
common (worldwide) properlv natural 
resource with unrestricted access. But 
once the point of approbation is made, 
il becomes necessary lo question 
whether an adequate regulation and an 
equitable regime have been built on that 
foundation. The agreements consti- 
tuting the declaration included a num- 
ber of purported research and regu- 
lator) provisions and, most relevant for 
this discussion, a "Declaration on the 
Maritime Zone."' In terms ol this 
declaration, and following a prcambii- 
lalory observation that governments 
have an obligation "to ensure lor their 
peoples access to necessary lood sup- 
plies and lo furnish them with the 
means ol developing their cconoim / 
(his declaration invokes a duly incum- 
bent upon governments lo prevent "es- 
sential lood and economic materials"' 
provided by the high seas off the coast 



215 



of the participating states "from being 
used outside the area of [their] jurisdic- 
tion." 2 These statements provide the 
premise of a proclamation asserting the 
parties' sovereignty over sea areas adja- 
cent to eacli of them, namely their 
claimed maritime zones "extending not 
less than two hundred nautical miles 
from" their coasts, including the 

coasts of islands. "[TJhe innocent 
and inoffensive passage of vessels of all 
nations" through the claimed maritime 
zones was the sole exception to the 
assertion of exclusive rights. 2 

"Bioma" and "Eco-system" Argu- 
ments. Perhaps the most complete state- 
ment of the CEP countries' juridical 
arguments justifying their claims is that 
given by Mr. Letts of Peru at the 486th 
Meeting of the United Nations General 
Assembly's Sixth Committee. He said: 
The sea off the coast of Peru 
has certain peculiar and unique 
characteristics which are deter- 
mined by the Peruvian Humboldt 
current. This current flows along 
the coast of Peru, Chile and Ecua- 
dor; it is the largest eoldrwater 
current and as it wells up from the 
depths of the sea it brings with it 
the detritus carried down by the 
rivers. This accounts for the 
immense biological wealth of the 
area which contains an extraor- 
dinary abundance of plankton and 
consequently a great concentra- 
tion of edible fish. The Humboldt 
current also accounts for two 
geological factors which have a 
bearing on the case: firstly, the 
low rainfall and consequent 
aridity of the Peruvian littoral 
and, secondly, the valuable guano 
deposits produced by the enor- 
mous concentration of sea birds 
attracted by the fish. 

Owing to the occurrence of 
these circumstances, Peru depends 
for its food supply mainly on the 
sea, that is to say directly on fish 



and indirectly on the guano which 
is essential to the farmers in the 
small coastal valleys. This is Peru's 
underlying motivation: the close 
relationship between man, the 
mainland and the sea in a particu- 
lar country where the ecology is 
such that the biological balance 
must not be upset . . . The protec- 
tion and utilization of these re- 
sources, which are essential to the 
nation's livelihood, were funda- 
mental reasons lor the action by 
Peru and for similar action by 
many other countries. ' 
Arguments, of which this statement 
is representative, have been compendi- 
ously designated "bioma" or "eco- 
system" theories. 30 Despite their rhe- 
toric, however, this writer doubts 
whether these theories relate to a 
unique situation or, indeed, add very 
much to the general considerations 
which underpin regional fisheries agree- 
ments everywhere. \( at all valid, the 
ecological underpinnings of the CEP 
states' argument may be tenuously rele- 
vant, not so much to regional arrange- 
ments as, possibly, to viewing the whole 
earth as a single ecological environment 
calling, ultimately, for a universal con- 
servation and exploitation regime. While 
arguments of this kind may be consis- 
tent with an attempt to bring mankind 
within the scope of some conservation 
theories based on human ecological 
premises, they do not achieve the results 
which the CEP countries hope to derive 
from their "bioma" and "ecosystem" 
theories. Because ecological arguments 
resting on ocean winds and currents 
ultimately have worldwide physical 
premises, those raised to justify CEP 
claims must in the long run either defeat 
the purpose for which they were de- 
veloped or be cast aside as merely 
pseudoscientilic. Finally, as the United 
Stales pointed out in the course of the 
1955 Santiago negotiations: 

The communities that live in 
the sea do not in any sense require 



216 



the coastal human populations to 
support their life;. . . . Conversely 
while coastal communities, in 
some cases, may depend upon the 
products of the sea lor their sus- 
tenance, the relationship is first of 
all limited, and secondly, is far 
from an intimate biological rela- 
tionship as suggested. The rela- 
tionship of coastal communities 
to the sea is . . . one of economic 
rather than biological character. l 
Be that as it may, tiie CEP instru- 
ments and arguments just indicated 
illustrate an important regional concern 
for the conservation and rational use of 
a major resource of the region. Al- 
though not unique, they provide a 
paradigm of the vitality of regionalism 
in the establishment of fisheries regimes. 
Because a universal fisheries regime docs 
not seem practicable for the time being, 
internationalism may be best served by 
taking regional approaches to such 
transnational problems as those of 
fisheries common to a group of stales. 
If the discussion appears to have 
lingered overlong with the CEP agree- 
ments, it is because international order 
may be better served by dropping some 
of the language of international idealism 
and by accommodating, in Orwell's 
terms, to the realpolilik of the averagely 
selfish. The discussion which follows is 
intended to adjust some of the current 
results of the average; selfishness of 
states by [jointing out a line of enlight- 
ened self-inlercst. On the other hand, 
the strength of national egoism is not 
undervalued in the benign hope that 
states may come to embrace altruistic 
policies. 

The Archipelago Theory. Indonesia 
and the Philippine Republic invoke the 
"archipelago theory" in order to claim 
all waters within baselines joining the 
outer promontories of the outer islands 
of their groups as internal waters, and 
they measure their territorial seas out- 
ward from those baselines. Some 



stretches of the water included within 
each ol these separate assertions of 
territorial sovereignly are more than 60 
miles from the nearest piece of dry land. 
Perhaps the most bizarre use to which 
this doctrine has been put was President 
Sukarno's "nationalization," on one 
occasion, of Dutch-flag merchant ships 
found within the proclaimed baselines 
of Indonesia's archipelago waters. This 
claim has not been recognized by any 
state. 

"Closed Seas." The Soviet Union is 
known as a state which has continu- 
ously adhered to the Czarist claim of a 
territorial sea of 12 marine miles. Now, 
when the United States appears to be 
ready to negotiate regarding that 
claim, 32 another category of exclusive 
claims has arisen over seas which Soviet 
Russia has inherited from the Czars, 
namely the so-called "closed seas." 
These would now appear to be left out 
of tin; U.S. calculations. It is very hard 
to pin down any exact meaning of this 
conccpl, but it would appear to indicate 
that the Soviet Union regards the fol- 
lowing seas (and this list is neither 
complete nor closed against future addi- 
tions) of internal waters: the White Sea, 
the Kara Sea, the Sea of Okhotsk, the 
Baltic Sea, the Sea of Japan. 3 In these; 
seas, according to the Soviet view, only 
littoral coasts may exercise freedom of 
navigation. This claim is unrecognized 
by the Family of Nations, and the 
Soviet Union is not pressing it— for the 
moment. The Arab States have sought 
to adapt this Russian concept to the 
Gulf of Aqaba. 

THE CANADIAN CLAIMS 

RESPECTING ARCTIC WATERS: 

A SPECIAL CASE? 

Canada's recent declaration of a pro- 
lection zone of 100 sea miles in 
width, 34 which is additional to her new 
territorial sea claim of a 12-mile belt, 
would appear to have been devised so as 



217 



to comply with the general international 
law right of abatement of high seas 
pollutions threatening a state's territory. 
That declaration (and its implementing 
legislation) has been misunderstood in 
the U.S. public press to the extent that 
it has been represented as an attempt to 
extend Canadian sovereign jurisdiction 
seaward in a manner resembling the 
maritime assertions of Chile, Ecuador, 
and Peru (as well as other South and 
Central American countries). Canada 
is not claiming to exercise sovereignty 
over an offshore zone of 100 sea miles 
in width wherein she may exercise a 
comprehensive authority for all pur- 
poses, or even for a wide spectrum of 
purposes. Rather, she is merely desig- 
nating an appropriate area in which she 
intends to exercise a limited authority 
to vindicate a specific national purpose, 
namely the protection of the delicate 
ecological balance of her Arctic tun- 
dra. Be that as it may, this Canadian 
experiment in international law has not 
gone without criticism on the basis that 
if the theory of "creeping jurisdiction" 
is applied to it, it is tantamount to a 
claim of sovereignty. There is a 
second Canadian thesis for underpinning 
her Arctic maritime pretensions, namely 
that coastal stales have, where appropri- 
ate, a duty to the world community to 
exercise authority on the high seas off 
their coasts to control conduct which 
has the potential of creating pollution 
catastrophes. While 1 find the claim of a 
contiguous zone for antipollution pur- 
poses on balance acceptable, this latter 
thesis seems unbecomingly Pecksniffian. 
We all tend to suspect a man (or a state) 
who conveniently finds a duty where he 
desires to exercise a power. 

CREEPING J URISDICTION- 
A COMMENT 

"Creeping jurisdiction" or "Craven's 
Law,"" is being increasingly used as a 
pejorative phrase for indicating the 
danger of recognizing coastal states' 



limited unilateral claims to exercise 
jurisdiction beyond zones sanctified by 
tradition or by international law. The 
propounders of this theory (or "law") 
tell us that whenever a state enjoys 
exclusive offshore rights for some pur- 
poses, it tends to acquire further exclu- 
sive rights for other and perhaps all 
purposes, jeopardizing regional, interna- 
tional, and community interests in the 
freedom of the seas. Professor Jiildcr's 
recent article on the Canadian Arctic 
Water Pollution Prevention Act provides 
an example: 

The precedents established by the 
Act are clearly capable of wide- 
spread abuse by other, perhaps 
less responsible states, with poten- 
tially harmful consequences for 
traditional principles of freedom 
of the seas. If a nation of the 
international stature of Canada 
may establish a 100-mile con- 
tiguous zone to control pollution, 
other coastal slates may also seek 
to do so; and the range of regula- 
tion justified under the rubric of 
pollution control may in practice 
differ little from that asserted 
under claims of sovereignly over 
such zones. Moreover, if 100-mile 
contiguous zones can be estab- 
lished for pollution control pur- 
poses, why not for other purposes 
as well. 39 

One response to the "creeping juris- 
diction" argument is that the Canadian 
claims of pollution control are predi- 
cated on the unique problems of Arctic 
ecology and on the extreme precarious- 
ness of the web of life in that region. 
Thus the tille prescribes the act's pur- 
pose as being merely: "To prevent 
pollution of areas in arctic waters adja- 
cent to the mainland and islands of the 
Canadian arctic." Again, the Canadian 
note handed to the U.S. Government of 
16 April 1970 has been summarized as 
asserting, inter alia: 

It is the further view of the 
Canadian Government that a 



218 



danger to the environment of a 
stale constitutes a threat to its 
security. Thus the proposed 
Canadian Arctic waters pollution 
legislation constitutes a lawful 
extension of a limited form of 
jurisdiction to meet particular 
dangers and is of a different order 
from unilateral interferences with 
the freedom of the high seas such 
as, for example, the atomic tests 
carried out by the USA and other 
states which, however necessary 
they may be, have appropriated to 
their own use vast areas of the 
high seas and constituted grave 
perils to those who would wish to 
utilize such areas during the 
period of the test blast. 
If this is held to be the core quality of 
the claim, then there can be very few 
slates that can treat it as a precedent. 
The Canadian claim can only become a 
precedent, and that precedent then can 
only become a means of allowing 
coastal stales to add lo their maritime 
authority by means of "creeping juris- 
diction, " il the necessary restrictions of 
purpose placed on the definition of 
Canada's pollution control contiguous 
zone are lost sight of. Hut if those 
limitations of purpose are lost sight of, 
the fault does not lie with Canada's 
claim, but with those who fail to iden- 
tify the points of necessary distinction 
and find in "creeping jurisdiction" an 
excuse for either their own ineptitude 
or pusillanimity. States' exclusive juris- 
dictions can only creep forward if the 
contraposed community interests with- 
draw before .them. A failure of will 
should not be disguised behind a 
pseudolaw. There is, furthermore, a 
need to distinguish between Pcck- 
sniffian claims in the name of pollution 
prevention (but whose real function is 
greed, bellicosity, or cartographical 
chauvinism) and the real article. "Creep- 
ing jurisdiction" theories are useful for 
absolving the timid Irom this invidious 
task. 



COASTAL STATES' 

RIGHTS OF ABATEMENT 

BEYOND TERRITORIAL LIMITS 

General International Law. Despite 
the apparently clear-cut situation out- 
lined in the introduction to this section, 
writings about the international law 
doctrines of self-help, self-preservation, 
and self-defense testify to basic disagree- 
ments. The boundaries they set between 
these concepts arc blurred. Indeed, il 
may well be that writers can only 
spuriously incorporate "self-preserva- 
tion" into the body of international 
law, for it is an instinct rather than a 
legal right. 41 Be that as it may, self-help 
permits a state confronted by a major 
calamity to exert sufficient, but no 
more than sufficient, force to avert the 
danger or abate its effects. Furthermore, 
the exercise of this right requires the 
observance of the rule of propor- 
tionality. The measure of this rule's 
application and scope was well pre- 
scribed (in a context of armed self- 
defense rather than in the type of 
abatement envisaged here, but still, 
nevertheless, instructive) by Secretary 
of Stale Daniel Webster in the case of 
The Caroline. He slated lhat a govern- 
ment taking defensive or abatement 
action must "show a necessity of self- 
defense, instant, overwhelming, leaving 
no choice of means, and no moment for 
deliberation. It will be lor it to show 
also lhat it . . . did nothing unreasonable 
or excessive, since the act, justified by 
the necessity ol self-defense, must be 
limited by that necessity and kept 
clearly within it." 42 The Torrcy Can- 
yon casualty in March 1967 provided 
this writer with an application of Daniel 
Webster's standard: 

A case, surely, could have been 
made lor a swilt abating action on 
the part of the British Govern- 
ment, provided il did not involve 
risking the lives of the stricken 
vessel's officers and crew. Could 
there have been a valid charac- 



219 



Icrizalion of such steps by tlic 
British Government to save its 
coasts, and the livelihood of its 
inhabitants, as the excessive, over- 
hasty use of force which the 
Corfu Channel case condemns as 
contrary to international law? A 
clear distinction can be drawn 
between the case where a country 
goes into the territorial sea of a 
distant nation and sweeps mines 
so that it can pass through that 
territorial sea, and the case where 
a coastal state, instead of passively 
awaiting catastrophe, destroys a 
potentially harmful entity off its 
shores but on the high seas. Would 
there have been doubts or delays 
if a disabled B-52 armed with 
hydrogen bombs had plunged into 
the waters adjacent to Pollard's 
Rock? The means of averting 
harm would have been different, 
naturally, but no one would have 
questioned haste. 

A Recent Treaty Formulation of the 
1969 Inter-Governmental Maritime Con- 
sultative Organization (IMCO) Public 
Law Convention. Although it points to 
a clearer and more definitive formula- 
tion of the rights of stales to prevent 
and abate oil pollution damage arriving 
within their territories from the high 
seas, the IMCO Public Law Convention 
lias not yet come into force. Accord- 
ingly it merely stands as a public docu- 
ment expressing the desires of the states 
which have signed it. Furthermore, even 
if it were to come into force, it would 
still only bind the states parties to it in 
any particular where it did not either 
formulate existing customary interna- 
tional law or constitute an instrument 
of change in customary law. The Inter- 
national Court of Justice's decision, in 
1909, in the North Sea Continental 
Shelf Cases underlines the difficulty 
of resorting to a treaty to establish both 
of these points, and most especially tin; 
latter. While the discussion which 



follows reviews the IMCO Public Law 
Convention as lex lata, the treaty iaces 
both the present of settled law and the 
future of legal change. It should be read, 
therefore, in the light of both its present 
status of being in the limbo oi all 
treaties which have not yet been 
brought into force and its Janus-like 
quality of facing both the past and the 
future. 

Before examining the IMCO Public 
Law Convention, perspectives should be 
formed by reviewing two earlier IMCO 
treaties on pollution of the ocean, 
namely the International Convention 
for the Prevention of the Pollution of 
the Sea by Oil, 45 and Amendments to 
the International Convention for the 
Prevention of Pollution of the Sea by 
Oil, 1954. 46 As their titles indicate, 
these treaties were drawn up as instru- 
ments for diminishing the rapid increase 
of the oil pollution of the sea. They 
prohibited the discharge of oil in slated 
zones 47 by almost all the most signifi- 
cant classes of ships. 48 These zones 
were, in the main, contiguous to coastal 
areas dependent on clean seas. The 
conventions' effectiveness was limited, 
however, since their enforcement lay 
within the jurisdiction of the stales ol 
registry. 49 They contained no recogni- 
tion of a coastal state's right of abate- 
ment, even in the defined "prohibited 
zones." Nor did they deal with the 
vexed issues of liability for harm. 

To remedy these defects, the Inter- 
Governmental Maritime Consultative 
Organization (IMCO) (-ailed an Interna- 
tional Legal Conference on Marine Pol- 
lution Damage which met in Brussels 
from 10 to 29 November 1969. It 
prepared and opened for signature and 
accession two conventions: the Interna- 
tional Convention Relating to Interven- 
tion on the High Seas in Cases of Oil 
Pollution Casual lies, 50 and the Interna- 
tional Convention on Civil Liability for 
Oil Pollution Damage. 51 These conven- 
tions were accompanied by three resolu- 
tions: Resolution on International 



220 



Co -operation Concerning Pollutants 
other than Oil; 52 Resolution on Estab- 
lishment of an International Compensa- 
tion Fund for Oil Pollution Damage; 53 
and Resolution on Report of the Work- 
ing Group on the Fund. 5 The Confer- 
ence also set out, in an annex to article 
8 of the Public Law Convention, rules 
governing the settlement of disputes by 
conciliation and arbitration procedures. 

Of these instruments the Public Law 
Convention is the agreement calling for 
treatment in the present context. It 
authorizes the parties to take necessary 
measures on the high seas "to prevent, 
mitigate or eliminate grave and immi- 
nent danger to their coastline or related 
interests from pollution" or the threat 
of it by oil "following upon a maritime 
casualty or acts related to such a 
casualty. Warships and other public 
ships engaged on "governmental non- 
commercial service," however, are 
not subject to such measures. After 
setting out consultation and notification 
requirements with which a coastal slate 
must comply, except in cases of ex- 
treme urgency and before taking preven- 
tive or curative measures, 5 7 the Conven- 
tion stipulates that those measures 
"shall be proportionate to the damage 
actual or threatened. 

Were it to come into force, would 
this Convention change the customary 
international law rights, duties, and ex- 
posures of the parties? An answer to 
this question would ('enter around four 
points: (J) the limitation of the Conven- 
tion to "pollution by oil," (2) the 
article 3 provision ol procedures lor 
notification and consultation, (3) the 
article 5 requirement that measures 
should be "proportionate" to the 
damage, and (4) the article 6 obligation 
to pay compensation if the damage 
caused by the measures taken exceed 
what may be "reasonably necessary" to 
cure the harm. 9 

Clearly the Convention can only be 
invoked in the ease of oil pollution, but 
this does not of itself repeal the general 



right of self-help in such matters. In 
addition, IMCO's Resolution on Interna- 
tional Co-operation Concerning Pollu- 
tants Other than Oil recognizes that 
"the limitation of the Convention to oil 
is not intended to abridge any right of a 
coastal state to protect itself against 
pollution by any other agent.' ° It 
recommends that the contracting stales 
exercise their general law rights in the 
light of the Convention's applicable 
provisions when confronted by pollu- 
tion dangers from oilier agents. The 
procedures in article 3 for consultation 
and notification do not unduly limit or 
restrict the general law right of abate- 
ment. They provide the means of exer- 
cising, in an appropriate fashion, the 
rights recognized by general customary 
international law, and add the amenities 
of cooperation and good neighborliness 
while precluding the possibility of an 
Alphonse-Gaston routine preventing any 
positive action. 

The Public Law Convention's para- 
graph I of article 5 makes the general 
demand that the eoaslal stale's response 
lo a casualty and the ensuing harm of 
threat thereof shall be "proportionate." 
This, in itself, may be no more than the 
incorporation of the general customary 
law principle. Paragraphs 2 and 3 of the 
same article arc as lollows: 

2. Such measures shall not go 
beyond what is reasonably neces- 
sary to achieve the end mentioned 
in Article 1 and shall cease as soon 
as that end has been achieved; 
they shall not unnecessarily inter- 
fere with the rights and interests 
of the Hag Slate, third Stales and 
o! any persons, physical or corpo- 
rate, concerned. 

3. In considering whether the 
measures are proportionate lo the 
damage, account shall be taken 
of: 

(a) the ex ten I and probability 
of imminent damage if those mea- 



su 



res are not taken; and 



221 



(b) tbc likelihood of those 
measures being effective; and 

(e) the extent of the damage 
which may be caused by such 

62 

measures. 

Clearly these provisions do no more 
than spell out the general law require- 
ments for the lawful exercise of the 
contemporary circumscribed right of 
self-help as applicable in the special case 
of averting or abating the consequences 
of a catastrophic casualty at sea. 

Finally, the obligation under article 6 
to pay compensation for harms caused 
by excessive measures is an embodiment 
of a very conservative view of cus- 
tomary international law. It may be that 
under special circumstances a case could 
be made for compensation when losses 
are inevitably incurred in the "propor- 
tional" exercise of force. Be that as it 
may, the conclusion from the considera- 
tion of these four points is that, insofar 
as the Public Law Convention is related 
to pollution by oil, it codifies the 
preexisting rights of coastal states to 
abate actual or threatened harms. It 
leaves the rights of these states un- 
touched when the polluting agent is 
some substance other than oil. 

THE FREE HIGH SEAS 

History. Over against the pro- 
liferating legal categories which have 
just been adumbrated, and which are all 
alike in their function of clothing (or 
pretending to clothe) exclusive state 
claims with legal justifications for en- 
closing increasing areas of the high seas, 
there remain the free high seas. The 
doctrine which asserts this freedom 
clearly vindicates the lone-term, com- 
mon interests of all states. Be that as 
it may, it is less than four centuries old 
and has only won universal recognition 
as a result of bitter struggles at sea and 
by bitter polemics at the negotiating 
table. In the Middle Ages and on 
through the Renaissance, and, indeed, 
into the 17th century, many states 



claimed to exercise sovereignty over the 
special sea areas, for example: Venice 
claimed sovereignly over the Adriatic, as 
did Genoa over the Ligurian Sea; Eng- 
land over the English Channel, the 
North Sea, and the Atlantic between the 
North Cape (Stadland) and Cape Finis- 
terre; Denmark and Sweden over the 
Baltic, the Dano-Norwegian Kingdom 
over the North Atlantic, and especially 
the waters between Iceland and Green- 
land. But, most extravagant of all, Spain 
and Portugal claimed to divide all the 
oceans between them under the Bull of 
Pope Alexander VI (the famous Borgia 
Pope) Inter Caetcra (1493) and the 
Treaty of Tortesillas. Nor were these 
claims merely high-sounding rituals of 
sovereignty. They were vindicated with 
comparative success, given the techno- 
logical developments in the weaponry of 
the time, for several centuries. For 
example, as late as 1636 the Dutch paid 
England 30,000 pounds for the privilege 
of fishing in the North Sea, and in 1674, 
under article 4 of the Treaty of West- 
minster, they acknowledged their ves- 
sels' obligation to salute the English flag 
within "British Seas" in recognition of 
English maritime sovereignty. It is of 
further interest to note the survival of 
this claim into an era not at all favorable 
to its recognition or enforcement. As 
late as 1805 the British Admiralty Regu- 
lations ordered that: 

[W] hen any of His Majesty's 
ships shall meet with the ships of 
any foreign power within His 
Majesty's seas (which extend to 
Cape Finisterre) it is expected 
that the said foreign ships do 
strike their topsail and take in 
their flag, in acknowledgment of 
His Majesty's sovereignty in those 
seas; and if any do resist, all flag 
officers and commanders are to 
use their utmost endeavours to 
compel them thereto, and not 
suffer any dishonor to be done to 
His Majesty. 65 
Hall comments on this claim that 



222 



because "no controversies arose will) 
respect to the salute at a time when 
opinion had become little favourable" 
to it, one need not doubt thai it bad 
been "allowed to remain a dead let- 
ter." Thus, it seems lo have become 
merely vestigial and unenforced during 
the L8lli century. 

Despite the long survival of these 
special claims, the doctrine of the free- 
dom of the high seas had become 
dominant from the 17th ccnlury and 
had been championed even earlier. For 
example, in 1580 Queen Elizabeth I of 
England had asserted to the Spanish 
Ambassador when he complained about 
Sir Francis Drake's famous incursion 
into the Pacific Ocean, that the ships of 
all nations could navigate the ocean 
since the air and the sea were common 
to all. Indeed, in words almost identical 
to those which Grotius later used and 
upon which his reputation partly rests, 
she claimed that no title to the ocean 
could belong to any nation, since 
neither nature nor regard for the public 
use permit led any possession of the 
ocean. Bui the English position was 
ambiguous, and in the early I7th cen- 
tury a number of British writers at- 
tacked Grotius' bold assertion thai the 
high seas cannot be the subject of any 
stale's dominion, but thai navigation 
and fisheries on them arc free to all 
nations. Be these observations as they 
may, despite the earlier protestations of 
her scholars and the vestigial survival 
in her Admiralty Regulations, England 
had, by the end of the 17th century, 
replaced the Netherlands as the leading 
champion of the freedom of the high 
seas. 

The "Tragedy of the Commons." 9 

Today the free high seas are still (but 
decrcasingly so from their heyday in the 
19th century) a common resource of all 
mankind. As with a common, so with 
the oceans, all ihe stales see their 
greatest mutual advantage as stemming 
from the general exercise of restraint by 



all, so I hat the hiidi seas' resources and 
cleansing properties are not over- 
strained, and its areas lying near coastal 
stales are not enclosed. On the other 
hand, each state sees its own individual 
profit as preempting lo itself as much of 
the common resources as possible, of 
enhancing its own maximum and im- 
mediate use and abuse of the commons' 
resources, and of maximizing its own 
enclosures. Thus each stale is impelled, 
in seeking its own short-term advantage, 
to work remorselessly against both ihe 
general welfare and its own long-term 
enlightened self-interest. This paradox 
of each slate being impelled to work 
remorselessly and inevitably against its 
own interests justifies the designation of 
the competitive regime of the common 
as a "tragedy." 

The contemporary trend of eroding 
the freedom of the high seas has 
stemmed from its largely negative 
character and its dependence on cus- 
tomary international law in an age 
which seeks to emphasize the con- 
crelizalion of justice and places a 
greater trust in public intervention than 
in privale enterprise, than in the pasl. 
Being negative, the doctrine is largely 
one of prohibitions. So far it has not 
been built into institutions wherein the 
equal rights of all stales provide ihe 
bases of affirmative policies of concrete 
distribu live justice. This negative charac- 
ter, indeed, provides the ammunition 
for arguments that, like any common, 
the richer and more powerful states can 
obtain disproportionally greater benefits 
from the ocean at the expense of the 
smaller stales. lis second weakness, that 
of its validity being largely based on 
customary international law, makes it 
dependent upon the continued practice 
and affirmance of states. Neilhcr prac- 
tice nor affirmation give it, today, the 
support it previously enjoyed. lis dimi- 
nution today is also, in part, concurrent 
with the contemporary dwindling in 
significance of customary international 
law. 70 Furthermore, both of these 



223 



characteristics have (in the absence ol 
special conservation treaties) permitted 
stales to engage in unlimited high seas 
fisheries so that the survival of some 
species (lor example, blue and sperm 
whales) is threatened. Again, the nega- 
tive character of the doctrine has in- 
creased the use of the ocean as if it were 
an infinite sink for all kinds of damaging 
materials— from dumping fissionable 
waste and testing nuclear bombs, to the 
constant flow of raw sewage, mercury, 
and DDT into its waters. While the 
problems of open access to fisheries are 
of great and increasing importance, this 
presentation will necessarily concentrate 
on the problems which arise from the 
permissive climate of the law that per- 
mits conduct to be based on the as- 
sumption that the seas have an infinite 
capacity to absorb the world's garbage 
for the indefinite future. Before this is 
taken up, however, the tasks of interna- 
tional law in the environmental field 
might be discerned more clearly as the 
result of a brief survey of some 
emerging activities which might well 
become as sensitive to the need for legal 
change as a result of technological de- 
velopments as have problems ol oil 
pollution damage. 

Laissez Faire and the Freedom of the 
Seas— A Plea for Reflection. There is a 
contemporary overstatement that the 
doctrine of the freedom of the seas 
favors dominant maritime states, since it 
is negative in effect and so favors the 
stronger states in competition for the 
oceans' use as a common. This is an 
unreflecting application of the fable 
"Every man for himself and the Devil 
take the hindmost' said the Elephant as 
he danced among the chickens." Such 
an oversimplified appraisal of the free- 
dom of the high seas has been converted 
into an argument e converso for sup- 
porting the enclosure of the seas— 
supposedly by lesser developed coun- 
tries. This perspective of the inter- 
actions of the uses of the seas and 



developing states' economics overlooks 
the historical fact that Venice was a 
dominant seapower with considerable, 
military authority over adjacent lands 
(as well as dependent territories) border- 
ing the Adriatic Sea when she claimed 
sovereignty over that sea. Similarly, 
Spain and Portugal were Great Powers 
when they claimed their halves of the 
149.J papal donation of the, world's 
oceans. History apart, practical polities 
show that smaller states can best 
llourish when the high seas are free and 
open to their commerce and fisheries on 
an equal footing with those of the Great 
Powers. (It is also true that regional 
regulation, rather than unilateral cxclu- 
sivism, provides the best means of re- 
straining greedy powers from "strip 
mining" a fishery so as to destroy its 
productivity for many years.) Regional 
controls are thus available and appropri- 
ate to protect the fishery rights of the 
less powerful and predatory states and 
their fishermen. 

Commerce can move across the seas 
more swiftly and cheaply— and hence 
with greater availability to poorer states 
and their domestic communities— when 
taxes and lolls are not exacted for the 
privileges of transit. Indeed, on the 
maintenance of cheap commercial 
transit the economic survival of the 
lesser developed (including landlocked) 
states may, in the long run, depend. 
When, as dominant seapowcrs, the 
Netherlands and England espoused the 
freedom of the high seas, they were not 
in a position to affirm claims of exten- 
sive maritime dominion because they 
were not also dominant land powers 
controlling the lands which surrounded 
or at least held the keys for controlling 
the seas. In addition, their long-term 
interests lay, as their diplomatic his- 
tories testify, on the side of the smaller 
nations, since they ultimately drew their 
strength from a worldwide web of com- 
merce with ihcsc countries, not from 
concentrated military authorily. Hence, 
for the past two centuries, the freedom 



224 

of the high seas has not provided an Dutch merchants in preventing maritime 

example of the tragedy of the com- encroachments by coastal states, and 

mons. This has been due to a number of the authority of the Royal Navy. 

factors including the limitations of tech- Against that combination no state was 

nology, the interests of English and able to hold any sea as a mare clausum, 

FOOTNOTES 

1. I.e., the initials of Chile, Ecuador, and Peru- the original parties to the Santiago 
Declaration 1952 and the foundation members of the "200 Mile Club." See § III A infra. 

2. For an indication of this species of unrecognized offshore claim, see § III B infra. 

3. Note, however, that art. 5, para. 2, Convention on the Territorial Sea and the 
Contiguous Zone, done at Geneva, art. 29, 1958, (1904) 2 U.S.T. 1606, TJ.A.S. no. 5639, 516 
U.N.T.S. 205 (effective 10 September 1964) [Thereinafter cited as "Convention on the 
Territorial Sea"] derogates, in some cases, from the proposition in the text. It provides: 

Where the establishment of a straight baseline in accordance with article 4 has the effect of 
enclosing as internal water areas, which previously had been considered as part of the 
territorial sea or of the high seas, a right of innocent passage, as provided in articles 14 to 
23, shall exist in those* waters. 

4. Art. 7, para. 4, Convention on I he Territorial Sea. 

5. United Slates v. California, 381 U.S. 136(1965). Supplemental decree, 382 U.S. 448 
(J 966), rehearing denied, 382 U.S. 889 (1966). 

6. 67 Stat 29 (1953), 43 U.S.C. fc 1301. 

7. See, for example, Canard S.S. Co. v. Mellon, 262 U.S. 100 (1923), and note especially 
ibid., at 125; Wildcnhus' Case, J 20 U.S. I (1886), and note especially ibid., at 11, 12; see also, 
The Creole (1853), 2 Moore, Digest of International Law 358, 361 (1906). This is often known 
as the "English Rule." It originated in the dictum of Best J., in Forbes v. Cochrane, 2 B & C 448, 
467, 107 E.R. 450, 457(K.B., L 824) ; Ca Idwell v. Vanvlissengen, 9 Hare 415, 68 E.R. 571 (V. 
ch., 1 851 ); and Savarkar's case, Scott, The Hague Court Reports 516(1911). For some additional 
cases see Reg. v. Keyn, per IMiillimore J., L.R. 2 Ex. 1). 63 at 82 (C.C.R., 1876). The American 
cases would appear to favor the "English Rule"; see, for example, dinar d S.S. Co. v. Vellon and 
Wildcnhus'' case, supra. See also Patterson v. Bark Kudora, 190 U.S. 169(1903). Frequently the 
"French* 1 or "Continental Rule 1 ' is contrasted with it; see, for example, The Sally and The 
Neivton, 5 Bulletin des Lois dc VEmpire Francois 602 (4th scr., 1807); The Tempest, Dalloz, 
Jurisprudence Generate 92 (1859); 1 Oppenheim 502-4; Brierly, The Law of Nations 223-5 (6th 
ed., Waldock, 1963) I hereinafter riled as "Brierly" J. 

On the other hand, sec, as a little known example of the "English Rule," In re Sutherland, 
39 IN.S.W. Weekly Notes 108 (1922) and see, for a presentation and discussion of this case, 
Charteris, "Habeas Corpus in respect of the Detention of a Foreign Merchantman, " 8 Journal of 
Comp. Legislation 246 (3d scr., 1926). Briefly the facts were these, two French convicts who had 
been sentenced to transportation to New Caledonia, and who were named Tulop and S/ibar, 
escaped from the French ship El Kantara whilst she was in the port of Newcastle, New South 
Wales, en route for the French penal colony. She sailed without them. The New South Wales 
authorities later arresled the convicts and handed them over to another private French ship, la 
Pacifique, in which they were destined to continue their voyage to Noumea. Before the vessel 
sailed, an application for a writ of habeas eorpus rule on behalf of the convicts was made by 
Sutherland. The Full Court of the Supreme Court of New South Wales refused the rule on the 
ground that to grant it would be to ignore the immunity of matters of internal management 
aboard the French ship from Australian law. Sir William Cullen, the Chief Justice, said (id at 
108-9): "If there were anything to show that the master of the French ship was acting without 
authority under French law, then the question might arise whether there was authority under 
Australian law for his keeping the men on board in Australian waters." This Australian version of 
the "English Rule" was delivered whilst the Court was sitting en banco. The concurrence was 
unanimous. When such cases as In re Sutherland are said to exemplify the "English Rule." it is 
submitted that perhaps the traditional distinction between the "English Rule" and the 
"Continental" or "French Rule" may well have become more a matter of formulation than of 
application and practice. See, for a discussion of this, and for a similar conclusion, Brierly at 
225-6. Moreover examples abound which illustrate the point that terms such as the "public 
order" or the "tranquility" of the port arc indeterminate, leaving their application to 
considerations of policy. To juxtapose the two Philippine cases of People v. Wong Cheng, 46 P.I, 



225 

729 (1922) and United States v. Look Chaw, 18, P.I. 373 (1910), will suffice to illustrate this 
point. 

For examples of diplomatic action to protect the immunity of the internal management of 
foreign ships in port, see protests by Belgium, Denmark, Great Britain, Mexico, Netherlands, 
Norway, Portugal, Spain, Sweden, in 1923 against the assumption of jurisdiction by the United 
States over liquor carried (but not sold) aboard their ships whilst in U.S. waters and harbors, 1 
U.S. Foreign Relations 1 13 (1923). 

8. But see People v. Wong Cheng, 46 P.I. 729 (1922), distinguish United States v. Look 
Chaw, J8P.1. 573(1910). 

9. For a definition of innocent passage see arts. 14-23 Convention on the Territorial Sea. 

10. Id., art. 4, para. 1 . See also, id., art. 23. 

11. For a discussion of the solecism see Goldic, "International and Domestic Managerial 
Regimes for Coastal, Continental Shelf and Deep-Ocean Mining Activities," The Law of the Sea: 
National Policy Recommendations 226, 227-30 (Proceedings of the 4th Annual Conference of 
the Law of the Sea, 23-26 June 1969, University of Rhode Island, 1969). 

12. Professor Georges Scelle was representative of the small band who refused to join the 
ranks of the international lawyers who saw virtue in the reception of the Continental Shelf 
Doctrine in international law or who were resigned, or complaisant, about its inevitability. See 
Scelle, "Plateau Continental et Droit International," 59 Revue Generalc de Droit International 
Public 5 (1955) [hereinafter cited as "Scelle, 'Plateau Continental."' See also the report of his 
comments in 1 1956] 1 Y.B. Int'l L. Common 133 which slates: "A/r. SCELLE observed that, as 
he did not attribute any scientific value, far less any legal validity, to the concept of the 
continental shelf, he welcomed any discussion which might further obscure the concept and 
thereby lead to its destruction." 

13. [1969] I.C.J. 3. 

14. See, generally, The New York Times, 31 January-3 April 1969. 

15. See The New York Times, 2 March 1970, p. 17; 1-6. 

16. S. Res. 33, 91st Cong., 1st Sess., 115 Cong. Rec. 1330(1969), which recommends that 
the President should place a resolution endorsing basic principles for governing the activities of 
nations in ocean space before the United Nations Committee on the Peaceful Uses of the Seabed 
and Ocean Floor beyond the Limits of National Jurisdiction. Also printed in Hearings on S. Res. 
33 Before the Subcommittee on Ocean Space of the Senate Committee on Foreign Relations, 
91st Cong., 1st Sess. at 9 (1969). 

17. Memorandum by L.F.E. Goldie on Senate Resolution 33, Hearings on S. Res. 33, id. at 
290, 300. 

IB. Done 29 April 1958, [19661 1 U.S.T. 138 T.I.A.S. No. 5969, 559 U.N.T.S. 285 
(effective 20 March 1966). 

19. See, e.g., Goldie,' "The Oceans' Resources and International Law— Possible Develop- 
ments in Regional Fisheries Management" 8 Columbia J. Traimml'l L. I (1909). 

20. The Declaration on the Maritime /one, Santiago, Chile, 18 August 1952. For an Fnglish 
translation of this and the parties' accompanying declarations and agreements (together 
constituting the "Santiago Declaration"), as well as subsequent and supplementary declarations 
and agreements, see B. MacChesney, Situation, Documents and Commentary on Recent 
Developments in the International Law of the Sea 265-89 (Naval War College Blue Book Series 
No. 51, 1956). See also B. Auguste, The Continental Shelf— the Practice and Policy of the Latin 
American Stales with Special Reference to Chile, Ecuador and Peru 187-92 (1960); S. Bayitch, 
Inter American Law of Fisheries, an Introduction with Documents 42-47 (1957); U.S. 
Department of State, Santiago Negotiations on Fishery Conservation Problems (1955). For a 
polemical defense of the CEP claims and policies, see, e.g., Cisneros, "The 200 Mile Limit in the 
South Pacific: a New Position in International Law with a Human and Juridical Content," A BA 
Section of Int'l & Comp. Law, 1964 Proceedings 56 (1965). Note particularly the criticism of the 
CEP claims in Kunz, "Continental Shelf and International Law: Confusion and Abuse" 50 Am. J. 
Int'l L. 828, 835-50 (1956) hereinafter cited as "Kunz." 

Until 1970 Chile, Ecuador, and Peru had been able to add only Nicaragua and El Salvador to 
their band-President Trejos having vetoed, on 21 November 1966, the ratification of the 
Declaration of Santiago by Costa Rica's Legislative Assembly. On the other hand, Argentina, by 
Law No. 18094, dated 4 January 1967, has asserted a double claim: out to 200 miles from the 
mainland coast, as well as from the coasts of islands, and out to the 200-meter isobath. While it is 
true that a number of South and Central American States have added to their continental shelf 
claims, claims to the "epicontinental sea" (i.e., the volume of the waters superincumbent upon 
their continental shelves) off their coasts, and to the superambient air above that "sea," this type 



226 

of claim is still asserted (albeit spuriously, cf. Continental Shelf Convention, art. 3) in terms of 
the international law regime of the continental shelf. Thus, this type of claim is distinguishable 
from the CEP type. So far the six "CEP countries" (including Argentina) have not been 
successful in persuading other Latin American States to assert specifically CEP claims to adjacent 
seas, nor has the Organization of American States adopted this position as that of the collectivity 
of Western Hemisphere nations. Indeed it has not as a body, recognized as valid state claims to 
epicontinental seas. Thus, for example, at the lntcr-American Specialized Conference on 
"Conservation of Natural Resources: the Continental Shelf and Marine Waters," Ciudad Trujillo, 
Dominican Republic, 15-28 March 1956 (see the final Act of the Conference Organization of 
American States Conferences & Organizations Series, No. 50, Doc. No. 34.1-E-5514 (1956)) the 
CEP states were unable to gain the Conference's agreement to the "bioma" and "eco-system" 
theories, or to declare that cither the waters above a continental shelf region, or waters extending 
from the shores of a coastal state for some distance such as 200 sea miles, appertain to the coastal 
state either on the basis of the continental shelf doctrine or on some other theory. The 
Conference observed (in Resolution 1 of the Conference, the "Resolution of Ciudad Trujillo," 
Final Act supra at 13-14) that: 

2. Agreement does not exist among Ihe stales here represented with respect to the 
juridical regime of the waters which cover the said submarine areas. 



6. Agreement does not exist among the states represented at this Conference either with 
respect to the nature and scope of the special interest of the coastal slate, or as to how the 
economic and social factors which such state or other interested states may invoke should 
be taken into account in evaluating the purpose of conservation programs. 



Therefore, this Conference docs not express an opinion concerning the positions of the 
various participating stales on the matters on which agreement has not been reached . . .. 
For the views of inter-American legal experts, see Inter- American Council of Jurists, 
"Resolution XIII, Principles of Mexico City on the Juridical Regime of the Sea. I Conservation of 
the Living Resources of the Nigh Seas," Final Act of the Third Meeting 37 (English CI.J-29) 
(1956). Note should be taken of Dr. Garcia Amador's comments (as the representative of Cuba) 
on the "Principle of Mexico City" at the Geneva Conference on the Law of the Sea, 1958: "As to 
the Principles of Mexico City, the validity of that document should be considered in the light of 
the resolution unanimously adopted by the Inter-American Specialized Conference held in 
Ciudad Trujillo in 1956." 3 I J.N. Conf. of the Law of the Sea, Geneva 1958, Official Records 37, 
U.N. Doc. A/Conf. 13/39(1958). 

For the 1956 Resolution of Ciudad Trujillo to which Dr. Garcia Amador is referring, see supra 
this note. For comments of governments. «v id, 50-59; lntcr-American Juridical Committee, 
Opinion on the Breadth of the Territorial Sea 24-42, OEA/Ser. 1/VI.2 (English CIJ-80) ( 1966). 

For the U.S. point of view, see U.S. Department of State, Santiago Negotiations on Fishery 
Conservation Problems 1-15, 19-20, 26-30, 36-11, 50-58, 59-66 (1955) [hereinafter cited as 
Santiago Negotiations], For the CEP countries 1 position and their criticism of the U.S. point of 
view, see id. 30-35, 41-44, 45-50. 

He that as it may, on 8 May 1970, Argentina. Brazil, Costa Rica, Ecuador, El Salvador, 
Nicaragua, Panama, Peru, and Uruguay participated in the Declaration of Montevideo on the Law 
of the Sea whereby the above-named states announced: 

That in declarations, resolutions and treaties especially inter- American, as well as in 
multilateral declarations and agreements reached among Latin American states, juridical 
principles have been consecrated which justify the right of states to extend their 
sovereignty and jurisdiction to the extent necessary in order to conserve, develop and 
exploit the natural resources of the maritime zone adjacent to their coasts, its seabed and 
subsoil; 

'That, in accordance to said juridical principles, the signatory states have extended, because 
of their special circumstances their sovereignty or their exclusive jurisdictional rights over 
the maritime zone adjacent to their coasts, its seabed and subsoil, to a distance of 200 
maritime miles, measured from the baseline of the territorial sea. 
21. The southern portion of the Peru Current is sometimes called the Chile Current With 

due deference to the countries concerned, this current will be called the "Humboldt Current* 1 

throughout this article. 



227 

22. See, supra, note 20. 

23. Declaration on the Maritime Zone, Preamble, § 1, See MacChesney 266. 

24. Id. 13. 

25. At the 1958 Geneva Conference, Mr. Ulloa Sotomayor insisted, however, that the 
Declaration of Santiago was of a "defensive character, and its sole object was the conservation of 
the living resources of the sea for the benefit of the populations of | the CEP] countries." 3 U.N. 
Conf. Off. Ree. 7, U.N. Doc. A ICON F. I 3/39 ( I 958). See also the restricted interpretation given 
by the representative of Chile at the 12th Meeting of the First Committee to the word 
"sovereignty" in the context of the claims made in the fulfillment of the Santiago Declaration, 3 
U.N. Conf. Off. Rec. 33, U.N. Doc. A/CON l<\ 1 3/39 (1958); the limited juridical scope intended 
for the claims to maritime /ones in the declaration as enunciated by Peru's representative at the 
5lh Meeting of the Third Committee, 5 U.N. Conf. Off. Rec. 5-7, U.N. Doc. A/CONFA'6/4,1 
(1958); the assertion by the Ecuadorian representative; at the 9lh Meeting of the Third Committee 
that the Santiago Declaration was a "common policy for the conservation, development and 
rational exploitation of those resources and [ the] joint machinery for the regulation of fishing in 
the areas in question," 5 U.N. Conf. Off. Rec. 18, U.N. Doc. A/CONF. 13/41 (1958); and the 
expressions employed by the latter representative at the I2lh Meeting of the Third Committee. 3 
U.N. Conf. Off. Rec. 61-62, U.N. Doc. A/CONF. 13/39 (1958). These CEP assertions of 
self-denial may be contrasted with the latest (as of the lime of this writing, 17 February 1969) 
application of violent force by the Peruvian Navy against three American tuna boats on 14 
February 1969, see, e.g., The New York Times, 15 February 1969, p. 1:1 and at 2:1. See 
generally Garcia Amador 73-79. 

26. Declaration on the Maritime Zone, art. 11, see MacChesney 266. 

27. Id. art. IV. 

28. Id. art. V. 

29. I 1 U.N. GAOK, 6th Comm. 31, U.N. Doc. AJC.6ISR.486 (1956). 

30. See also, e.g., Cisneros, 58-60; Santiago Negotiations 30-33, and note especially the 
statement: 

This is, in short, the concept of biological unity from which is derived, in the 
scientific field, the preferential right of coastal countries. According to this concept, the 
human population of the coast forms part of the biological chain which originates in the 
adjoining sea, and which extends from the microscopic vegetable and animal life 
(fitoplanklon and zooplankton) to the higher mammals, among which we count man. Id. 
32. 

31. United States, "Comments on the Proposals of Chile, Ecuador and Peru," Santiago 
Negotiations 37. 

32. See Speech of Legal Adviser to Department of State Stephenson. 

33. See W. Butler, The Soviet Union and the Law of the Sea, 1 16533 ( L97J ); and W. Butler, 
The huv of Soviet Territorial Waters 19-25 (1967). 

34. Arctic Waters Pollution Prevention Act, 18-19 Eli/.. 2, c. 47 (Can. 1970). Royal Assent 
given 26 June 1970. This act has not yet been proclaimed as having come into force, set: id. £ 28. 
See also The New York Times, 9 April 1970, p. 13:6-8; id. 10 April 1970, p. 13:3-4; id. 16 April 

1970, p. 6:1-2; id. 20 April 1970, p. 38:2 (Editorial); id. 26 April 1970, § 4 (Week in Review) p. 
3:5-8. 

35. See, supra, § 111 A for a discussion of these Latin American claims. 

36. For a clear enunciation of the validity of the distinction relied upon here, see McDougal 
& Burke, The Public Order of the Oceans 518-1 9 (1962). 

37. See, e.g., Bilder, "The Canadian Arctic Waters Pollution Prevention Act: New Stresses 
on the Law of the Sea." 69 Mich. L. Rev. 1 (1970). [hereinafter cited as "Bilder"] 

38. For this appellation of creeping jurisdiction see Henkin, "The Continental Shelf," The 
Law of the Sea: National Policy Recommendations 171, 175-76 (Proceedings of the 4th Annual 
Conference of the Law of the Sea Institute, 23-26 June 1969, University of Rhode Island, 1969). 

39. Bilder, supra note 37, at 30. 

40. House of Commons Debates 6027 (17 April 1970). But see R. v. Tootalik El 321, 71 
W.W.R. (n.s.) 435 (Northwest Territorial Court 1970) rev'd on other grounds, 74 W.W.R. 740. 
Noted in Green, "Canada and Arctic Sovereignty," 48 Can. B. Rev. 740, 755-56, 773 (1970). See 
also Auburn, "International Law— Sea Ice— Jurisdiction," id. at 776-82. 

41. This writer, for one, is most resistant to the uncivilized notion that self-preservation may 
justify making lawful that which would otherwise be unlawful. Professor Bricrly was correct 
when he said, citing the cannibalism case of R.V. Dudley and Stephens, 14 Q.B.D. 273 (1884) in 
support of his argument: 



228 

The truth is that self-preservation in the case of a state as of an individual is not a legal 

right but an instinct; and even if it may often happen that the instinct prevails over the 

legal duty not to do violence to others, international law ought not to admit that it is 

lawful that it should do so. 

Brierly 405. For clarity, and because of the important moral issues outlined by Brierly in the 

passage just quoted, it is necessary to distinguish between self-preservation on the one hand and 

self-help on the other. See McDougal & Feliciano, Law and Minimum World Public Order 213 n. 

204 (1 961) for a critique of the "subsumption of disparate things under a common rubric. " 

42. 2 Moore. Digest of International Law 409-14 (1906) [hereinafter cited as Moore]. See 
also Jennings, "The Caroline and McLeod Cases," 32 Am. J. Intl L. 82 (1938). Hall characterizes 
the quoted formula as "perhaps expressed in somewhat too emphatic language . . . but perfectly 
proper in essence." See Hall, A Treatise on International Law 324 (8th ed. A. Higgins, 1924). 
| hereinafter cited as "Hall"] For reasons staled in the preceding footnote, Oppenhcim- 
Lauterpaeht's characterization of the case of The Caroline as "self-preservation" is respectfully 
disagreed with. See 1 Oppenhcim 301. For a reasoned justification of the use of the term 
"self-defense" to describe the coercive protective measures open to the British Government in the 
Torrey Canyon casualty, see lit ton, "Protective Measures and the Torrey Canyon"" 9 B.C. Ind. & 
Com. L. Rev. 613, 623 (1968). This writer, however, prefers the term "self-help" to indicate 
justifiable action in oil disasters of the type under discussion. 

43. Goldie, Book Review, 1 /. Maritime L. & Com. 155, 158 (1969). 

44. [ 1969] T.C.J. 3. See for a general discussion of this complex issue and of the different 
positions taken by the members of the Court on it, Goldie, "The North Sea Continental Shelf 
Cases-A Ray of Hope for the International Court?" 16 JV.KL. Forum 325, 336-59 (1970). 

45. Done 12 May 1954, [1961] 3 U.S.T. 2989, T.I.A.S. No. 4900, 327 V.N.T.S. 3 
[hereinafter cited as the International Pollution Convention] (entered in I o force 26 July 1958). 

46. Adopted \[ April 1962, [1966| 2//.S.7 1 . 1523, T.I.A.S. No. 6109 (entered into force as 
to amendments to arts. 1-10, 16 and 18, 18 May 1969 and as to art. 14, on 28 June 1967) 
[hereinafter cited as "Pollution Amendments"]. Further amendments were made in 1969, 
Amendments to the International Convention for the Prevention of Pollution of the Sea by Oil, 
1954 (as amended), annexed to IMCO Ass. Res. A. 175 (VI) adopted 21 October 1969. Sec Two 
Conventions and Amendments Relating to Pollution of the Sea by Oil (Message from the 
President, May 20, 1970), 91st Cong., 2d Sess., at 29-32. See also 62 Dept. State Bull. 756-57, 
758-59 (15 June 1970). 

47. See Annex A to the International Pollution Convention replaced by § 14 of the 
Pollution Amendments. 

48. See the four exceptions listed in art. 2, para. 1 of the Pollution Amendment, supra note 
46. 

49. See art. 2 of the International Pollution Convention, supra note 29, as replaced by § 2 of 
the Pollution Amendments, supra note 30. 

50. Done 29 November 1969, 9 Int'l Legal MaleriaLs 25 11909] [hereinafter cited as the 
Public Law Convention]. 

51. Done 29 November 1969, 9 Intl Legal Materials 45 [1969] [hereinafter cited as the 
"Private Law Convention."] 

52. 9 Intl Legal Materials 05 

53. 9 //i/V Legal Materials 06. 

54. 9 InVl Legal Matcrmls 67. 

55. Public Law Convention art. 1, para. 1, supra note 34. 

56. Id. para. 2. 

57. Id. art. 3, art. 4 provides for the list of experts contemplated in art. 3. 

58. Id. art. 5, para. 1 . Paragraphs 2 and 3 set out the limits of stale action. 

59. Art. 7 saves all existing rights "except as specifically provided" in the Convention. Id. 
The question is, therefore, whether the express limitation of the Public Law Convention and the 
express provisions in arts. 3, 5, and 6 limit, or enlarge, the rights of coastal slates. 

60. Supra note 50. 

61. The treaty among Belgium, Denmark, France, the Federal Republic of Germany, the 
Netherlands, Norway, Sweden, and the United Kingdom, the Agreement for Co-operation in 
Dealing with Pollution of the Norlh Sea by Oil, done 9 June 1969, [1969] U.K. IS. No. 78 
(Cmnd 4205) (entered into force 9 August 1969), formulates some of the amenities of good 
ncighborliness in this context. 

62. Public Law Convention, supra note 50, at 469. 



229 

63. This position lias recently been affirmed by the United Nations General Assembly in 
paragraph 13 of the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and 
the Subsoil Thereof, Beyond the Limits of National Jurisdiction, G.A. Res. 2749, 25 U.N. 
GAOR-(I970) which reads: 

Nothing herein shall affect 

(b) The rights of coastal States with respect to measures to prevent, mitigate or 
eliminate grave and imminent danger to the coast line or related interests from pollution 
or threat thereof resulting from, or from other hazardous occurrences caused by, any 
activities in the area, subject to the international regime to be established. 

64. Professor Joseph Kunz cogently argues that "the long-established principle of the 
freedom of the high seas" is a norm juris cogentis of general customary international law, see 
Kunz, "Continental Shelf and International Law: Confusion and Abuse," 50 Am. J. Int'l L. 820, 
844-45,853(1956). 

65. Quoted from Hall 185. 

66. Id. 

67. Sec, e.g. supra, note 64 and the theory therein cited. 

68. These were Gentilis, Welwood, Burrows, and Selden, of whom the last is the best 
known. Gentilis' defense was equally of Spanish and Fnglish claims. Seidell is famous for his 
book Marc Clausum, the printing of which was commissioned by Charles 1 as a counterblast to 
Grolius' Marc Liberum. See I Oppenheim, International Law 585 (8th ed. Lauterpacht 1955). 

69. For a discussion of this built-in tragic situation whereby each is forced, by his immediate 
dilemma, to work against his own long-term advantage, sec Hardin, "The Tragedy of the 
Commons," The Environmental Handbook 31, 36-38 (G. DeBell ed. 1970). 

70. Sec Devisscher, Theory and Reality in Public International Law 162 (rev. ed. Corbett 
transl. 1968) for an incisive and realistic, if possibly pessimistic, discussion of this point. 



230 



APPENDIX I 



The territorial sea claims shown in the following list unequivocally illustrate the 
point made in the text. This list is valid as of 18 June 1971. Acknowledgment for 
this list is gratefully given to the International Law Division, Office of the Judge 
Advocate General, Department of the Navy. 

TERRITORIAL SEA CLAIMS 



Country 



Territorial Sea 



Country 



Territorial Sea 



Albania 


12 


miles 


Indonesia (See para. (3) 




Algeria 


12 


miles 


under "II. Archipelago 




Argentina® 


200 


miles 


Theory") 




12 miles 


Australia 


3 


miles 


Iran 




12 miles 


Barbados 


3 


mi.es 


Iraq 




12 miles 


Belgium 


3 


miles 


Ireland 




3 miles 


Brazil 


200 


miles 


Israel 




6 miles 


+ Brunei (U.K.) 


3 


miles 


Italy 




6 miles 


Bulgaria 


12 


miles 


Ivory Coast 




6 miles 


Burma 


12 


miles 


Jamaica 




12 miles 


Cambodia 


12 


miles 


Japan 




3 miles 


Cameroon 


18 


miles 


Jordan 




3 miles 


Canada 


12 


miles 


Kenya 




12 miles 


Ceylon 


12 


miles 


Korea (N) 




12 miles 


Chile 


50 kilometers 


Korea (S) 




3 miles 


China (Comm) 


12 


miles 


Kuwait 




12 miles 


China (Taiwan) 


3 


miles 


Lebanon 




20 kilom 


Colombia 


12 


miles 


Liberia 




12 miles 


+Comoro Islands (France) 


3 


miles 


Libya 




12 miles 


Congo (Brazzaville) 


3 


miles 


Malagasy 




12 miles 


Congo (Kinshasa) 


3 


miles 


Malaysia 




12 miles 


Costa Rica 


3 


miles 


Maldive Islands 


(See para. 


(2) under 


Cuba 


3 


miles 




"II. Archi 


pel ago 


Cyprus 


12 


miles 




Theory."! 




Dahomey 


12 


miles 


Malta 




3 miles 


Denmark 


3 


miles 


Mauritania 




12 miles 


Dominican Republic 


6 


miles 


Mauritius 




12 miles 


Ecuador 


200 


miles 


Mexico 




12 miles 


El Salvador 


200 


miles 


Monaco 




12 miles 


Equatorial Guinea 


6 


miles 


Morocco 




3 miles 


Ethiopia 


12 


miles 


Muscat & Oman 




3 miles 


+ Faroe Islands (Denmark) 


3 


miles 


Nauru 




3 miles 


+ Fiji (U.K.) 


3 


miles 


Netherlands 




3 miles 


Finland 


4 


miles 


+ New Caledonia (F 


ranee) 


3 miles 


France 


3 


miles 


New Zealand 




3 miles 


Gabon 


25 


miles 


Nicaragua 




3 miles 


Gambia 


12 


miles 


Nigeria 




12 miles 


Germany (E) 


3 


miles 


Norway 




4 miles 


Germany (W) 


3 


miles 


Pakistan 




12 miles 


Ghana 


12 


miles 


Panama 




200 miles 


Greece 


6 


miles 


Peru 




200 miles 


♦Greenland (Denmark) 


3 


miles 


Philippines 


(See para 


(1) under 


Guatemala 


12 


miles 




"II. Arch 


pel ago 


Guinea 


130 


miles 




Theory." 


I 


Guyana 


3 


miles 


Poland 




3 miles 


Haiti 


6 


miles 


Portugal 




6 miles 


Honduras 


12 


miles 


♦ Reunion (France) 




3 miles 


Iceland 


4 


miles 


Romania 




12 miles 


India 


12 


miles 


Saudi Arabia 




12 miles 



231 



Country 


Territorial Sea 


Country 


Territorial Sea 


Senegal 


12 


miles 


Tunisia 


6 miles 


+Seychelles (U.K.) 


3 


miles 


Turkey 


6 miles 


Sierra Leone 


12 


miles 


USSR 


12 miles 


Singapore 


3 


miles 


+Surinam (Netherlands) 


3 miles 


Somali 


12 


miles 


UAR 


12 miles 


South Africa 


6 


miles 


United Kingdom 


3 miles 


Spain 


6 


miles 


United States 


3 miles 


Sudan 


12 


miles 


Uruguay© 


200 miles 


Sweden 


4 


miles 


Venezuela 


12 miles 


Syria 


12 


miles 


Vietnam 


12 miles 


Tanzania 


12 


miles 


Vietnam (S) 


3 miles 


Thailand 


12 


miles 


Yemen 


12 miles 


Togo 


12 


miles 


Yemen (S) 


12 miles 


Tonga 


3 


miles 


Yugoslavia 


10 miles 


Trinidad 


12 


miles 







I. NOTES TO LIST 

@ Argentina: By law of 29 December 1966, sovereignty was claimed over a 200 
mile zone, but freedom of navigation of vessels and aircraft was not curtailed. It is 
not clear whether or not this is a territorial sea claim in extension of the previously 
claimed three mile limit. 

Uruguay: Law of 3 December 1959, claims a 200 mile territorial sea, but 
specifically guarantees freedom of navigation and overflight in the area beyond 12 
miles. In the 12-200 mile portion of the zone only foreign fishing is restricted. 

+ Certain dependent areas are included on the list. These particular dependent 
areas are separately listed because their locations give them importance with respect 
to worldwide navigation. This list does not include all dependent territories. In each 
case the breadth of the territorial sea of the dependent is fixed by its metropole, 
which appears in parenthesis after the nave of the dependent territory. 

II. ARCHIPELAGO THEORY 



(1) Philippines: Archipelago theory: Waters within straight lines joining appropri- 
ate points of outermost islands of the archipelago are considered internal waters; 
waters between these baselines and the limits described in the Treaty of Paris, Dec. 
10, 1898, the United States-Spain Treaty of Nov. 7, 1900, and U.S.-U.K. Treaty of 
Jan. 2, 1930, are considered to be the territorial sea. 

(2) Ivlaldive Islands: The "territory" of the Maldive Islands is defined as the 
islands, sea and air surrounding and in between the islands situated between 
Latitudes 7 degrees - 9 1 /2 feet (North) and degrees - 45% feet (South) and 
Longitudes (East) 72 degrees - 30% feet and 73 degrees - 48 feet. These coordinates 
form a rectangle of approximately 37,000 square nautical miles. 

(3) Indonesia claims an archipelago theory under which its 12 mile territorial sea 
is measured seaward from straight baselines connecting its outermost islands. 



The number of sovereign states claiming various territorial seas is as follows: 



3 miles - 30 states 12 miles - 51 states 

4 miles - 4 states 20 kilometers - 1 state 
6 miles - 12 states 18 miles - 1 state 

10 miles- 1 state 25 miles - 1 state 



50 kilometers 
130 miles 
200 miles 



1 state 
1 state 
7 states 



232 



AN INTER-AMERICAN APPROACH 
TO THE LAW OF THE SEA? 



Charles L. Cochran 



Nineteen seventy-four promises to 
be a momentous year in the develop- 
ment of the law of the sea. A com- 
prehensive conference will meet in 
Caracas, Venezuela, this summer to 
elaborate a new and equitable inter- 
national legal system for the sea, the 
seabed, and the ocean floor as well as 
the subsoil beyond the limits of 
national jurisdiction. A host of related 
issues will be considered, including 
precise definitions of the areas and the 
problems concerning the regime of the 
high seas, the Continental Shelf, the 
territorial sea and contiguous zone, as 
well as fishing and conservation of the 
living resources of the seas, the pre- 
vention of pollution, and issues con- 
cerning scientific research. 



Preparation for the conference began 
in the United Nations in late 1970 and 
continued in other regional organiza- 
tions during 1971. The importance 
attached to the work of the preparatory 
committee is reflected in the number of 
states in the General Assembly which 
sought appointments to the committee. 
Ultimately, 91 states of the General 
Assembly were appointed as members, 
and at least 19 other states have partici- 
pated as observers. With so many 
members in the preparatory committee, 
agreement was not easily reached. In an 



Appreciation is expressed for the funding 
of the research for this article by the Environ- 
mental Protection Research and Development 
Team at the U.S. Naval Academy. 



233 



effort to facilitate its work, the com- 
mittee was divided into three subcom- 
mittees. The first is the Seabed Subcom- 
mittee whose focal point is the regime 
of law dealing with economic resources 
found on the seabed and subsoil of the 
Continental Shelf to the limits of na- 
tional jurisdiction. 

The second subcommittee deals with 
the classical themes of the law of the 
sea, such as the determination of mari- 
time space and questions concerning the 
breadth of the territorial sea. 

The third subcommittee is designed 
to deal with the preservation of the ma- 
rine environment. Its areas of concern 
include the prevention of pollution, the 
problems associated with scientific re- 
search, and the preparation of draft 
treaty articles on those problems. It has 
been particularly concerned with deter- 
mining state responsibility in preventing 
the contamination of the seabed. 

A majority of states were in agree- 
ment that the subcommittee system 
should prevail for the focusing of points 
of law and breaking them down to more 
manageable proportions. This prepara- 
tory subcommittee work revealed that 
states differed significantly on the issues 
involved, and the approaches taken were 
largely a reflection of a leader's percep- 
tions of states' present and anticipated 
national interests. The approaches gen- 
erally fall into the following categories. 
First, some countries favor the status 
quo, are generally opposed to new regu- 
lations that would give coastal states 
either preferential treatment or ex- 
tended jurisdictions, and feel that most 
of the ocean should be left open to the 
free use of all nations. Beyond the nar- 
row limits of the territorial sea, empha- 
sis is placed on the concept that the seas 
are a common heritage and resource of 
all mankind; no individual or group of 
states may claim a special right or in- 
terest to benefit from the seas and the 
resources therein unless the community 
of states sanctions the claim. 

This group is led principally by the 



Soviet Union, Japan, the United King- 
dom, and a few other states with major 
distant-water fishing interests. 1 These 
developed states are joined .in their 
opposition to the extensive claims of 
some coastal states by a large number of 
the world's landlocked and shelflocked 
states. 2 A large percentage of the land- 
locked countries are undeveloped and 
would have much to gain from either 
free access to the sea's resources or a 
broad international jurisdiction over the 
sea giving equal access to all states. 

In opposition to the proposition of 
this first group are states which view the 
right of coastal states to extend their 
jurisdiction seaward either unilaterally 
or through international agreement. The 
claim of such coastal state prerogatives 
is a relatively recent phenomenon and 
represents a crude measure of the states' 
accessibility to the seas as well as their 
dependence on the resources in the seas 
and on the seabed. Representatives of 
this group are coastal states with con- 
siderable investment or dependence on 
ocean resources such as Brazil, Ecuador, 
and Peru. 

The third position represents a com- 
promise and had its origin with the 
"Specialized Conference of Caribbean 
Countries Concerning the Problems of 
the Sea," a group that formulated the 
Santo Domingo Declaration. Fifteen 
nations met and established principles 3 
based on a need for the development 
of regulations which would take into 
account scientific and technological 
progress as well as new political reali- 
ties that did not exist when many of 
the classical rules were formulated. The 
declaration noted that the rights, 
obligations, and responsibilities of 
states relative to the various oceanic 
zones should be defined through norms 
of worldwide application without 
prejudice to regional or subregional 
agreements based on those norms. New 
rules on the oceanic zones should be 
designed to promote international co- 
operation for the protection and har- 



234 



vest of marine resources. In formu- 
lating these rules it is essential that 
both the needs and interests of indi- 
vidual states as well as those of the 
international community be met. 

The Declaration of Santo Domingo 
is made up of two inseparable ele- 
ments. The first element concerns the 
territorial sea in the classical sense. The 
sovereignty of the state is recognized as 
extending beyond its land territory over 
an area of the sea adjacent to its coast 
to a limit of 1 2 nautical miles, measured 
from the appropriate baseline. The 
sovereignty of the coastal state also 
extends to the superjacent airspace as 
well as to the seabed and subsoil be- 
neath the territorial sea. Ships of all 
states maintain the right of innocent 
passage through the territorial sea. 

The declaration recognized a con- 
sensus in support of a 12 nautical mile 
territorial sea and concluded that an 
international agreement should establish 
a legal norm. In the absence of a legal 
standard, several states in the world 
community have made claims beyond 
the 12 miles granted in the 1958 Con- 
vention on the Territorial Sea and the 
Contiguous Zone, 4 even though they 
recognize that they can exercise only 
limited jurisdiction over such areas. 

The contiguous zone in which the 
coastal state may exercise authority 
regarding customs, fiscal, immigration, 
or sanitary regulations up to 12 miles 
from its coast is practically a dead issue, 
and nearly all states have now added the 
claim for exclusive fishing rights at least 
to the outer limits of the contiguous 
zone. This leaves only the right of high 
seas navigation, which is a bit broader 
than rights of innocent passage through 
a territorial sea, and scientific explora- 
tion in the contiguous zone beyond the 
territorial sea intact. Most states have 
decided to resolve the situation by 
claiming the maximum allowed under 
the 1958 convention. 5 

It is significant that the draft articles 
proposed by the United States on the 



Breadth of the Territorial Sea, Straits, 
and Fisheries submitted to subcom- 
mittee II suggest the right of each state 
to establish the width of its territorial 
sea up to 12 nautical miles. This right 
would be limited only by the provisions 
of article II which state that, 

In straits used for international 
navigation between one part of 
the high seas and another part of 
the high seas or the territorial sea 
of a foreign State, all ships and 
aircraft in transit shall enjoy the 
same freedom of navigation and 
overflight, for the purpose of 
transit through and over such 
straits, as they have on the high 
seas. 6 

The new position on the territorial 
sea is inseparable from the concept that 
there is a regime beyond the limits of 
the coastal states' sovereignty which is 
still not commonly shared by all states. 
This area in which the coastal state 
could exercise certain kinds of special- 
ized jurisdiction over the economic re- 
sources was termed the "patrimonial 
sea." The Santo Domingo Declaration 
proposed that the whole of the area 
including the territorial sea and the 
patrimonial sea should not generally 
exceed a maximum of 200 nautical 
miles. Differences regarding the width 
of the zone and the powers of the 
coastal state are less important than the 
recognition of the principle itself. This 
is the zone which the forthcoming 
conference must determine and define. 
It represents one of the most important 
developments in recent years and pro- 
vides the most promising basis of a 
compromise formula. 

The concept that the coastal state 
bears the responsibility for the prudent 
use of coastal resources is a consequence 
of the philosophy of developing coun- 
tries. The primary motive for coastal 
states aspiring to such a right has been 
justified by Mexico and an increasing 
number of states as being nothing les6 
than the close interrelationship between 



235 



land and sea in the environment. Other 
states see the need for the establishment 
of a "buffer zone" to protect against 
pollution. It is also argued that there is 
an element of natural justice involved in 
the concept of the patrimonial sea. The 
living resources are fished by all, often 
to the detriment of those closest by. 
Developing countries are more des- 
perately in need of creating a plentiful 
protein supply for their frequently 
undernourished and expanding popula- 
tions. The utilization of the sea's re- 
sources also provides employment op- 
portunities in these same countries. 

At the same time, it is important to 
note that this is not an exercise in 
sovereignty. The Santo Domingo Decla- 
ration provides a basis for states to 
exercise rights over resources rather 
than over the area itself. Navigational 
rights are not affected as article 8 states 
that in the patrimonial sea, ships and 
aircraft from all states, whether coastal 
or not, should enjoy the right of "free- 
dom of navigation and overflight with 
no restrictions." 

The coastal state has no power to 
shut off the patrimonial sea from navi- 
gation, and while the patrimonial sea 
concept would allocate resource man- 
agement functions over all living and 
nonliving resources on the seabeds, the 
subsoil, and the vertical water column 
to a distance of 200 miles seaward of 
the coastal state, the exact distance 
could be compromised. For example, 
Iceland recently claimed exclusive 
fishing rights within 50 nautical miles of 
its coast. That distance was used rather 
than 20 miles or 200 miles because 50 
miles is roughly the edge of the Conti- 
nental Shelf surrounding Iceland. Be- 
yond that limit there is no great abun- 
dance of fish. There can, however, be no 
doubt that coastal states will be enabled 
to restrict fishing and other forms of 
economic exploitation in the waters 
adjacent to their coasts at distances 
greater than 12 miles. The same is true 
in terms of a coastal state's exclusive 



right to exploit the resources in the 
adjacent seabed to a like distance. 

A case in point is a recent U.S. 
agreement with Brazil concerning 
shrimp fishing by American vessels off 
the Brazilian coast. 7 Brazil claimed a 
territorial sea of 200 nautical miles from 
its coast largely on the pragmatic politi- 
cal grounds that foreign fishing vessels 
with advanced technical equipment 
were fishing out certain fish and crus- 
taceans, primarily shrimp, and were 
taking them back to their own coun- 
tries. Not only was Brazil deriving no 
benefit from the exploitation of the 
fishing grounds, but her stocks were 
being depleted. The situation was seen 
by Brazil as being patently unfair. 
Brazil, anticipating that it would be 
criticized if it substituted foreign ex- 
ploitation for coastal state exploitation, 
indicated instead its concern for con- 
servation and agreed that foreign vessels 
could fish in those waters only after 
having obtained a license to fish up to a 
maximum limit of not more than 160 
vessels flying the U.S. flag at any one 
time. There are other restrictions on the 
type of gear to be used and a prohibi- 
tion against the use of electronic equip- 
ment for fishing purposes. 

The United States has now estab- 
lished its own "conservation" areas in 
the Northeastern Pacific Ocean and has 
signed an agreement with the Soviet 
Union limiting the right of the Soviets 
to fish in an additional 9 mile area 
adjacent to but outside of the 12 
nautical mile exclusive fishery claim by 
the United States. 8 While the U.S. 
position is rather modest compared to 
claims of a 200-mile patrimonial sea, it 
is indicative of a positive attitude 
toward the idea of the patrimonial sea. 

The United States has also proposed 
an alternative to the patrimonial sea 
economic zone in the form of the 
"species" approach. The species ap- 
proach differentiates between three 
kinds of fish, each requiring different 
regulations -those that migrate widely 



236 



over great distances, those that spawn in 
fresh or estuarine waters and then re- 
turn to the sea, and fish that remain off 
the coast of a particular state. The 
major question to be resolved by the 
conference is: Which approach to the 
resolution of the problem of the man- 
agement and distribution of living 
marine resources will most effectively 
do the job and win the support of most 
states of the world? An economic zone 
recognized in the concept of the patri- 
monial sea certainly is less complicated, 
does not require agreements on each 
species, and enjoys the general support 
of many more states than does the 
species approach. 

Although the problem is not ad- 
dressed directly, the Santo Domingo 
Declaration and the patrimonial concept 
would still permit a solution to the 
fisheries problem in the economic zone 
by taking into account the migratory 
habits of fish and the manner in which 
they were fished. The declaration did 
not attempt to define procedures for 
the settlement of disputes and left open 
distinctions in the treatment of living 
resources based on their migratory 
habits. Therefore, the document pro- 
vides a valuable starting point for seri- 
ous negotiations and is in conformity 
with the idea. 

In June 1972, within weeks of the 
meeting at Santo Domingo, a regional 
seminar of African States was held in 
Yaounde (Cameroon) to discuss similar 
issues. At its conclusion the seminar 
adopted several recommendations that 
closely paralleled those of the Santo 
Domingo Declaration. 9 It noted that 
the territorial sea should not extend 
beyond a limit of 12 nautical miles, but 
further recommended that the African 
States extend their sovereignty over all 
the resources of the high sea adjacent to 
their territorial sea "within an economic 
zone to be established and which will 
include at least the continental shelf." 

The purpose of the economic zone 
over which the coastal state would have 



exclusive jurisdiction is to Drovide for 
regulation and national exploitation of 
the living resources of the sea, their 
reservation for the primary benefit of 
coastal peoples and economies, and for 
the control of pollution in the area. The 
general report was adopted unanimously 
without reservation. 

The waters of the seas situated be- 
yond the limits of the patrimonial sea or 
economic zone constitute an interna- 
tional area of the high seas and seabed 
in which traditional freedoms remain. 
However, in the interest of protecting 
the marine environment and promoting 
scientific research and conservation, the 
area should be subject to international 
regulation of worldwide authority. The 
Yaounde report adds that the governing 
body set up to manage the common 
heritage outside the limit of national 
jurisdiction should operate in such a 
way that the developing countries 
would be the primary controllers and 
beneficiaries. 

By 1952, considerable juridical sup- 
port had developed for claims of 
"sovereignty" over the sea adjacent to 
states up to a distance of 200 nautical 
miles. Chile, which had extended its 
territorial waters claim to 200 miles in 
1946, invited Ecuador and Peru to meet 
in Santiago where they concluded the 
Declaration of Santiago on the Maritime 
Zone. 10 The declaration recognized 
200-mile claims of the three states, and 
2 years later a subsequent agreement 
was signed by these states which bound 
them not to diminish the 200-mile limit 
without prior consultation and agree- 
ment with the other signatories. 

The patrimonial sea concept appears 
to be the most viable method for 
compromise by which these states could 
still claim 200 miles, even if only for 
exclusive exploitation rights and not as 
a territorial sea beyond 12 miles. There 
is now general agreement that coastal 
states do have a legitimate claim for 
preferences on the high seas beyond the 
limit of the territorial sea. 



237 



The Inter- American Juridical Com- 
mittee met in Rio de Janeiro in January 
and February of 1972 and appeared to 
sanction the Declaration of Santo 
Domingo in its report. 1 1 The Juridical 
Committee recommended that the 
American States take the report into 
consideration when presenting their 
recommendations to worldwide con- 
ferences discussing a new legal system 
for the seas. Unfortunately the Juridical 
Committee's statement was unclear in 
its definitions of "sovereignty" and 
"jurisdiction." Article one states that 
The sovereignty or jurisdiction of 
a coastal state extends beyond its 
territory and its internal waters to 
an area of the sea adjacent to its 
coasts up to a maximum distance 
of 200 nautical miles, as well as to 
the air space above and the bed 
and subsoil of that sea. 
Two zones of the sea within the 
200-mile limit are distinguished. The 
first zone extends to a distance of 12 
nautical miles and is dealt with in terms 
that leave no doubt that it is the 
territorial sea. The second zone is 
treated as the patrimonial sea but it is 
not clear that a coastal state's "jurisdic- 
tion" rather than "sovereignty" is exer- 
cised in this area. This failure is impor- 
tant since there remains the possibility 
that a state could subsequently enlarge 
its claims over an economic zone in the 
name of "sovereignty" over the area. If 
this becomes the case, an "innocent 
passage" agreement will be much more 
difficult to achieve. 

Caracas, during the summer of 1 974, 

will witness a comprehensive effort to 
thrash out an agreement on the law of the 
sea. The issues of the economic partition 
of the sea and the classical themes of the 
determination of maritime space and the 
more recently recognized problems of 
contamination and scientific exploration 
are so inextricably bound together that 
no one area of problems can be resolved 
without requiring accommodation in the 
other areas. Therefore, if serious ne- 



gotiations are to go forward, a will- 
ingness to compromise is essential. 
Failure to reach a settlement would 
seriously jeopardize any hope of uni- 
form rules concerning the law of the 
sea. Indeed, the consequences of failure 
to reach an agreement and the resulting 
anarchy are perhaps the greatest in- 
centive to bargaining in good faith. 

The proposal put forward at Santo 
Domingo in June of 1972 provides a 
sound basis for a compromise solution. 
Nothing in the concept of the patri- 
monial sea would prevent the main- 
tenance of "free passage" as opposed to 
"innocent passage" in the straits that 
would otherwise become part of the 
territorial sea if a uniform 1 2-mile limit 
was established. This would satisfy the 
major maritime states' concern for free- 
dom of movement upon the seas. The 
patrimonial sea, between 12 and 200 
miles, in which the coastal state would 
exercise rights over the resources rather 
than sovereignty over the area, would 
ensure that the navigational rights of 
other states would not be affected. Such 
an agreement would prevent a creeping 
extension of restrictive claims and offer 
states having made claims of a 200-mile 
territorial sea an acceptable compro- 
mise. Several states claiming a 200-mile 
territorial sea have already indicated 
that they intend to enforce only their 
economic claims in the area. 

In this system it would be possible 
for the coastal state either to adopt the 
measures necessary to prevent or reduce 
pollution within this zone unilaterally, 
the zone being a part of its national 
resources, or the state could refer to a 
broader set of international standards. 
Scientific research could also be carried 
out in this area with the coastal state 
having a right to receive all results of 
such research activities. The coastal 
state would be required to give its 
permission to allow the scientific re- 
search activities without unjustified dis- 
crimination or restriction. 

These proposals leave open the 



238 



question as to whether the seas and the 
ocean floor located beyond the patri- 
monial sea, as well as the resources 
beyond that limit, are the common 
heritage of mankind or whether that 
area should be governed by a new 
international organization. An interna- 
tional organization could grant licenses 
for economic exploitation with the 
licensing revenues beinq turned over to 



an international development fund as 
well as enforce pollution controls in that 
area. A major point in favor of the 
"international organization" approach as 
opposed to the "common heritage" ap- 
proach is the realization that "freedom of 
the seas" has come to mean freedom to 
pollute and overfish. The old anarchy 
must be replaced by progressive laws 
regulating the use of the seas. 



NOTES 

1. Other states with major distant-water fishing interests include the United States, East 
and West Germany, Poland, South Africa, South Korea, and the People's Republic of China. The 
United States and the People's Republic of China are major exceptions in not supporting the 
position of this group. 

2. "Shelf -locked" is defined here to indicate a nation whose continental shelf abuts that of 
a neighbor so that no portion of the shelf descends below the 200-meter isobath, which is the 
legally defined limit. 

3. Barbados, El Salvador, Guyana, Jamaica, and Panama did not sign the Santo Domingo 
Declaration. It was signed by Colombia, Costa Rica, Guatemala, Haiti, Honduras, Mexico, 
Nicaragua, Dominican Republic, Trinidad and Tobago, and Venezuela. 

4. United Nations Conference on the Law of the Sea, Geneva, 1958, Convention on the 
Territorial Sea and the Contiguous Zone, A/CONF.13/L.52 (Geneva: 1958). 

5. Fifty-four states now claim 12 miles and 23 claim more than 12. Of 41 states who claim 
less than 12 miles for a territorial sea, 25 claim at least 12 miles for exclusive fishing rights. 

6. United Nations, General Assembly, "Draft Articles on the Breadth of the Territorial Sea, 
Straits, and Fisheries Submitted to Sub-Committee II by the United States of America" 
(A/AC.138/SC.II/L.4), Official Records; Report of the Committee on the Peaceful Uses of the 
Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction, 26th Session, 
Supplement No. 21 (A/8421) (New York: 1971), p. 241. The United States recognizes in its 
submission the inevitability of the 12-mile territorial sea, but, as a major maritime nation, is 
concerned that these expanded claims could impede navigation and commerce, and decrease the 
mobility of military vessels. Article I of the draft articles proposed by the Union of Soviet 
Socialist Republics concerning straits used for international navigation has almost identical 
language. See United Nations, General Assembly, "Draft Articles on Straits Used for 
International Navigation Submitted by the Union of Soviet Socialist Republics" (A/AC.138/ 
SC.II/L.7), Official Records; Report of the Committee on the Peaceful Uses of the Sea- Bed and 
the Ocean Floor beyond the Limits of National Jurisdiction, 27th Session, Supplement No. 21 
(A/8721) (New York: 1972), p. 162-163. Both states would recognize the right of coastal states 
to designate corridors for transit by both ships and aircraft in these areas. 

7. "Agreement Between Government of Federative Republic of Brazil and Government of 
USA Concerning Shrimp," Lawyer of the Americas, v. 5, no. 1, Feb. 1973, p. 188-197. 

8. U.S. Treaties, etc., "Fishing Operations, Northeastern Pacific Ocean"; "Fisheries, 
Northeastern Part of the Pacific Ocean off the United States Coast," Treaties and Other 
International Acts, Series 7572 and 7573 (Washington: U.S. Govt. Print. Off., 1973). 

9. United Nations, General Assembly, Committee on the Peaceful Uses of the Sea-Bed and 
the Ocean Floor beyond the Limits of National Jurisdiction, Conclusions in the General Report 
of the African States Regional Seminar on the Law of the Sea, Held in Yaounde, from 20-30 Jun 
1972, A/AC. 138/79 (New York: 1972). 

10. Marjorie M. Whiteman, Digest of International Law (Washington: U.S. Dept. of State, 
1965), v. IV, p. 1089-1090. 

11. Organization of American States, General Secretariat, Work Accomplished by the 
Inter- American Juridical Committee during Its Regular Meeting Held from January 15 to 
February 16, 1973, OEA/Ser.Q/IV.6 CJI-13 (Washington: 1973). 



* 



239 



FREEDOM OF THE SEAS 



Ephraim P. Holmes 



The concept of freedom of the seas is 
long rooted in man's use of the seas for 
trade and commerce. The ability of men 
freely to use the seas as a reliable 
communications link has been essential 
to the development of an economically 
and politically interdependent modern 
world. 

Freedom of the seas means that all 
states have a basic right to use the seas 
in support of their national and interna- 
tional aims. However, this does not 
mean an unrestricted usage, without 
regard for the interests of neighbors and 
trading partners. On the contrary, since 
the earliest limes, limited restriction on 
ihe use of ihe seas has been generally 
accepted as necessary bv ihe com- 
munily of nations. For example, nations 
have tended to assert specific restrictive 
measures on the use of seas adjacent to 
their national coastlines. These measures 
have been asserted for reasons of se- 
curity, economics, or other national 
interests. 

However, the basic, principle that the 
seas are and should be free for the use 
of all lias not been substantially 
abridged. In fact, for the last 400 years 
a growing body of international law has 
been developed, principally in order to 
deal with those issues which have, from 



time to time, challenged the basic con- 
cept. 

Much of this body of law has evolved 
through the individual actions of states, 
while in recent years more formal codi- 
fication has been undertaken through 
the use of multilateral conventions and 
treaties. Whatever the source, the gen- 
eral thrust of the movement has been 
aimed at limiting or regulating the uni- 
lateral claims of states which have 
attempted to impose broad controls 
over the free use of the seas by all who 
wish to do so. Thus, it appears that the 
community of nations has long recog- 
nized that the general interests of the 
group would best be served by pre- 
serving this basic right. 

Today, we may be thankful that 
these early efforts have been largely 
successful. The modern world is an 
economically interdependent entity, 
whose prosperity and security is based 
on seaborne commerce and whose unity 
is sustained by the threadlike sealanes 
which crisscross our global charts. 

Although freedom of the seas is vital 
to global commercial operations, it is 
absolutely essential for the efficient 
operation of naval forces in peacetime. 
All navies must be concerned with any 
move to limit the movement of naval 



240 



forces by the extension of controls over 
the high seas, for those forces must he 
able to steam when and where the 
support of national and commercial 
interests requires them to go. 

In this respect, the gradual evolution 
of rules for the free use of the seas has 
included the development of the right 
of innocent passage in order to facilitate 
the use of the seas for both commercial 
and naval interests. As a practical mat- 
ter, the term "innocent passage" is 
subject to varied interpretations within 
the maritime community. Basically, 
however, passage of vessels through ter- 
ritorial seas is considered innocent so 
long as no acts are committed which are 
prejudicial to the security of the coastal 
stale or contrary to existing law. This is 
as it should be, from our point of view 
as naval officers, for without such a 
right, the operations of naval forces 
would be greatly hampered, while com- 
mercial operations might become eco- 
nomically impossible. 

Although we must be concerned by 
any reduction of the freedom of the 
seas, there are reasonable grounds for 
encouraging the continued development 
of the international law of the sea. This 
is so despite the probability that addi- 
tional restrictions on the uses of the seas 
might be included. Some have claimed 
that events of recent times have threat- 
ened seriously to erode the concept of 
freedom of the seas. There have been 
precedent-setting unilateral actions by 
some nations in pursuit of their own 
national interests which have had the 
effect of challenging the right of all 
slates to the free use of tin; seas. These 
actions, although cause for concern by 
ihe general maritime community, are at 
least deserving of our sympathetic con- 
siderations, for all nations should and 
will act in support of their own best 
interests. However, ihe problem often 
becomes that of accurately perceiving 
one's own best interest, both for the 
long term and for the moment. 

For example, a small maritime stale 



which declares the existence of a broad 
territorial sea thereby imposes duties on 
itself as well as claiming privileges. If tli<* 
extent of territorial sea claimed is be- 
yond the ability of the slate to control, 
it is possible that oilier nations might 
use ihe area for mounting aggression 
against a third state, thus compromising 
the neutrality of the original declarer. 
Such considerations arc relatively 
minor, however, when compared to the 
implications to a small maritime state of 
any meaningful erosion of the general 
right to free use of the seas. In the final 
analysis, a workable and consistent legal 
regime for ihe high seas is of greatest 
benefit lo the smallest, weakest slates. 
Large and powerful nalions always will 
retain the capacity to defend their own 
interests through persuasive diplomatic, 
economic or military pressures. The 
entire thrust of the development in 
human society of a rule of law appli- 
cable lo individuals and stales alike has 
been to provide protection for the weak 
against the depredations of the strong. 

Most of the recent developments 
have been directly attributable to the 
accelerating pace of technological 
change which has characterized the last 
few decades. In earlier times, political 
and technical events moved at a pace 
which allowed for the rational develop- 
ment of theories on international rela- 
tions and law consistent with the univer- 
sal desire of men for peaceful inter- 
action with their fellows. Hut now, 
events frequently seem to outstrip the 
ability of precedent and practice to 
build rational and ordered guidelines for 
international conduct. A tendency is 
developing to assert claims now, in 
order to reserve privileges for the future. 
Many of these decisions have, of neces- 
sity, been made without appropriate 
regard for future implications. 

It is manifestly Irue that we exist 
today in a world far different from that 
of our fathers. It is a world shrunken as 
much by advances in communications 
and transport as by the advent of 



241 



intercontinental weaponry. It is no 
small wonder that the historic definition 
of the width of the territorial sea as that 
distance within range of a cannonball 
now seems inconsistent with the limes. 
Granted, the basis of this rule is archaic, 
hut the 3-mile territorial sea is the only 
rule which has been universally accepted 
and thus provides the only basis for 
developing a new and more meaningful 
modern rule. Questioning of an existing 
rule is quite acceptable, for this is how 
the regime of law matures and becomes 
more useful; and such questioning is to 
be expected, parliculary in light of 
today's changing world. 

For example, in the last decade, the 
minds of men have been stimulated to 
high excitement by visions of new possi- 
bilities for the exploitation of the re- 
sources of the sea and the seabed. The 

advancement of technology, combined 
with the proliferation of states who 
must look increasingly seaward for 
food, minerals, and jobs for their ex- 
panding populations, has made it man- 
datory for all of us to get on with the 
task of using the ocean and its resources 
to the fullest practical extent. 

Although the imagination of man- 
kind has been sparked by prospective 
new uses for the seas, it must not be 
forgotten that the most valuable im- 
mediate and future use of the oceans is 
their historic utility as an economical 
means of transport and communica- 
tions. 

The development of swift, efficient, 
and spectacular means of air transport 
may seem to some to have reduced the 
value of the seas as a medium of 
commercial intercourse. The opposite is 
true. Reliable estimates predict that 
world seaborne trade will double every 
20 years for the foreseeable future. The 
world's present total freight costs are 
estimated to be between $12 and $15 
billion per year. Air transported cargoes 
now constitute less than 3 percent of 
international world trade, while trade in 
bulk raw materials remains almost 100 



percent seaborne. In 1966 the seaborne 
trade of the United States alone was 
valued at over $30 billion, and this 
figure will continue to increase. Clearly, 
then, we should neither be blinded by 
speculation on possible new uses of the 
seas nor forgetful of the proven and 
increasing value of the oceans as high- 
ways. 

The interdependence which has been 
fostered in modern society, principally 
through seaborne cultural and trade 
links, now dictates that no one state can 
make unilateral reductions in the area of 
the seas available for the use of all 
without vitally affecting the well-being 
and security of almost all other slates. 
For that reason, as well as to prevent, 
wherever possible, points of friction 
between nations, it is necessary that we 
look to the possibilities of improving 
the existing rules for the use of the sea. 

I have pointed out that a growing 
body of international law has been 
formulated in support of the concept of 
freedom of the seas. The American 
philosopher, Henry Ward Beecher, once 
said that "Laws . . . are constantly 
tending to gravitate, [or become un- 
balanced] Like clocks, they must be 
occasionally cleaned . . . and set to true 
time." Perhaps now is the time for us to 
investigate to what degree the laws of 
the sea have become unbalanced and 
their need to be set in step with the 
times. 

International law, as you know, is 
based on two principal sources. First, 
customary international law— that is, the 
practices of stales— forms precedents on 
which to build rules of conduct. 
Secondly, conventional international 
law— formal agreements or treaties 
among nations— provides written guide- 
lines for specific situations. 

Precedents become highly valued and 
reliable sources for the rules of conduct 
between nations if based on principles 
of mutuality and reciprocity. That is, 
the precedents are based on mutual 
interests and recognize that any other 



242 



state lias the right to reciprocate with 
the practice established by the state 
setting the precedent. The usefulness of 
precedents is further enhanced if they 
describe the consistent practices of most 
slates. Such consistency of practice, 
however, is difficult to establish over a 
brief period of time, particularly if the 
diverse and competitive interests of 
states are in a condition of flux during 
that period. This is the situation today. 
Competition and diversity of interest 
have never been at such a peak as they 
have over the last decade, and the 
current, confused status of the legal 
regime of the seas reflects the times. 

Because of the apparent growing 
unreliability of precedent as a basis for 
future actions, it may be that the world 
community must now look more to the 
formulation of conventions and treaties 
as the best means of reestablishing order 
within the legal regime of the seas. 
Certainly, we must consider possible 
courses of action along this line. 

Of course, because treaties and con- 
ventions operate to limit future action 
by signatory stales as well as to define 
their privileges, they are very difficult to 
draw up. This difficulty is increased 
when the specific future interests of 
stales are unforeseeable, and il may be 
for this reason that we should hope that 
such conventions or attempts at codifi- 
cation be as simple and as conceptual as 
possible. However, it is clear that the 
broad interests of all maritime states can 
be well served by reasoned analysis of 
the problems affecting the freedom of 
the seas. In my mind they will be well 
served if they lend only to stale prin- 
ciples rather than detailed regulations. 
For those who may believe that uni- 
lateral actions by states in this area are 
feasible and sufficient for now, I suggest 
that they consider all aspects of such 
actions. In many cases, the unilateral 
actions of a state can become just as 
binding on its own future options as a 
formal multilateral treaty. Further, il is 
not unreasonable, in these changing 



times, to presume the existence of 
circumstances where premature uni- 
lateral action by a slate could deprive il 
of all future advantage from as yet 
uurevealed technology or political cir- 
cumstance and thereby limit its options. 
For this reason, if for no other, il seems 
that all members of the community of 
nations can best protect their interests 
through encouragement of formal, 
reasoned agreements on some of the 
most pressing questions now affecting 
the freedom of the seas. 

The Geneva Conferences on the Law 
of the Sea in 1958 and I960 made 
substantial gains in restating historic 
principles and in approaching new con- 
cepts more appropriate to the limes. 
Yet, more remains to be done to regu- 
larize state practices while at the same 
time preserving freedom of the seas. 
Points which are in growing need of 
clarification include: 

1. A general agreement on the width 
of the territorial sea which updates the 
existing rule and which provides for the 
specific protection of the interests of 
individual states as well as the general 
interests of the world community in the 
preservation of the wide high seas to the 
maximum extent possible. 

2. A clear definition of the rights of 
all nations to free access through multi- 
national straits and bays. 

3. Elimination of the existing am- 
biguity affecting the definition of the 
Continental Shelf. The existing conven- 
tion specifies the 200-meter line but 
also adds "or to the limit of exploit- 
ability." Despite the further lest of 
"adjacency/' the real possibility for 
successful exploitation of seabed re- 
sources at depths well in excess of 200 
meters makes further clarification neces- 
sary. 

4. Establishment of basic interna- 
tional criteria for national fishing rights 
in the contiguous zones. 

When we consider the new vistas 
opened by technology and the resulting 
absence of appropriate historical prac- 



243 



tices, together with the intensifying 
competition among nations for oceanic 
resources, we cannot afford to delay. 
Objectively drawn, inclusively oriented 
international agreements are needed, 
and needed now. 

It is clear that, in spile of these 
compelling considerations which hring 
an air of urgency to the need for 
enlarged codification of the law of the 
sea, it will be extremely difficult to 
construct a convention covering all 
these points. Further, if agreement is to 
be reached on these matters, there will 
have to be substantial adjustment by 
many nations, large and small, from 
positions which they now appear to 
hold. 

Is it possible that the desires of the 
world community for the retention of 
the concept of freedom of the seas 
might be inconsistent with the growing 
necessity for full exploitation of ocean 
resources? I believe not. 

It appears to me that if reasonable 
order is to be maintained in the use of 
the oceans, then the fundamental con- 
cept of freedom of the seas will provide 
the only essential basis upon which to 
continue to build that order. It is clear 
that the extreme opposite case, where 
each nation might stake out unilateral 
claims to vast ocean areas limited only 
by their ability to apply national power 
to enforce the claim, can lead only to 
chaos, international conflict, and gross 
injustice to the weaker nations. The 
Icss-dcvclopcd states of the world would 
be doubly handicapped in such a free- 
for-all arrangement. Not only are they 
in more urgent need of the resources of 
the sea in order to solve immediate and 
pressing problems of economics and 
population, they are also the least able, 
technologically speaking, to carry out 
an efficient exploitation of whatever 
resources might be conceded to them. 

From an exclusively military, or 
naval, point of view, any general aban- 
donment of the concept of freedom of 
the seas can have only one ultimate 



result. No navy can operate in a peace- 
time environment without the guaran- 
teed freedom of maneuver provided by 
the concept of freedom of the seas. 

Thus, il seems clear ihal the future 
development of Ihe law of the sea must 
be squarely based on long-standing pre- 
cepts arising from the doctrine of free- 
dom of the seas. It may well be that the 
specific dimensions of the sea available 
for ihe free use of all will be reduced 
from that of today, but the general 
concept must remain the keystone of 
world maritime activity. 

How then can the demands of 
modern society be reconciled with a 
doctrine rooled in antiquity? 

I do not believe these demands an; 
inconsistent or unattainable. In every 
case where unilateral slate action has 
been taken to erode the concept of 
freedom of the seas based on economic 
reasons, an equally good case may be 
made for compensating economic ad- 
vantage to be gained from reversion to 
claims of lesser dimension. For example, 
world shipping schedules and routes 
which are not constrained by broad 
territorial sea claims are certainly more 
economical and do return broad bene- 
fits to all. Also, an unwarranted exten- 
sion of national responsibility over 
ocean areas too large to police can 
impose burdens on a state, burdens 
which it may grow unwilling to bear in 
exchange for the benefits originally 
foreseen. In other words, there appear 
to be inherent pressures toward self- 
regulation built into the concept of 
freedom of the seas. From time to lime, 
these stabilizing tendencies are slow in 
coming into operation. However, in the 
absence of deliberate obstruction, they 
will operate; to elect an opposite course 
of action is destabilizing and inevitably 
contrary both to the interests of individ- 
ual states and the community of na- 
tions. 

Gentlemen, I have pointed out some 
serious points of potential conflict 
among nations, and I suggest that it is 



244 



not enough for us as naval officers to 
merely take note of them and then pass 
on to problems more easily solved. 
Because of our shared heritage as profes- 
sional seamen, we should be belter able 
to call forward the spirit of mutual 
understanding and cooperation needed 
than others whose training and profes- 
sional experience are based solely on 
political or diplomatic careers. The old 
seaman's maxim, "one hand for yourself 
and one hand for the ship" seems 
appropriately parallel to the situation 
we face today. In the matter of freedom 
of the seas, our countries and our world 
order each demand a hand from us if 
they are to weather the squalls on the 
horizon. 

I suggest that there are several ac- 
tions we should undertake. First, we 
should keep open the channels for 
exchange of ideas which we will estab- 
lish here this week. Perhaps you will 
consider in your seminars today the 
proposition that these dialogs may be 
continued in the future— perhaps by a 
system of "committees of correspon- 
dence," perhaps through regular re- 



gional or international naval convoca- 
tions. 

Second, we should remain alert to 
detect the implications of advancing 
marine technology as it may have an 
effect on freedom of the seas. 

Third, we should take whatever in- 
dividual action we are able to encourage 
the promotion of international conven- 
tions which will continue the work of 
codifying the law of the sea, keeping 
always in mind the view that the key- 
stone of such codes must be freedom of 
the seas. 

Finally, we should beware of prac- 
tices or declarations which promote 
unreasoned exclusiveness without suffi- 
cient regard to widely shared interests. 

In conclusion, I would like to express 
my belief that institutions such as the 
Naval War College and convocations 
such as this symposium can be of 
immense value not only in promoting 
mutual understanding through reasoned 
discussions, but also in helping each of 
us to recognize the fine balance between 
national and international interests and 
their effect on freedom of the seas. 



Y 



245 



NEW ISSUES AND NEW INTEREST 



IN THE LAW OF THE SEA 



Joseph B. McDevitt 



The past 2 years have witnessed an 
intense national and international de- 
bate over major issues in the law of the 
sea. The legal questions connected with 
man's increasing desire to exploit the 
living and mineral resources of the seas 
and ocean floor have occasioned par- 
ticular interest both domestically and 
abroad. 

At home several bodies, which I will 
mention later, have devoted their activi- 
ties to these questions. Internationally, 
the increased activities of the Inter- 
governmental Oceanographic Commis- 
sion (IOC) and Intergovernmental Mari- 
time Consultative Organization (IMCO) 
have been supplemented by debates at 
the 22nd Session of the General Assem- 
bly which resulted in a new 35-nation 
United Nations Ad Hoc Committee on 
the Seabeds. The United Nations Gen- 
eral Assembly will again address these 
problems this fall. Indeed, each week 
brings a report of new scientific or 
commercial interest in the resources of 
the sea and ocean floor. The imagina- 
tion of Jules Verne 100 years ago in 
Twenty Thousand Leagues Under the 
Sea is finally being outstripped by ac- 
tual technology. The future is projected 
in the context of scientific research and 
technology infinitely more exciting than 
the literary entertainment of science 
fiction. Using the commonly accepted 



U.S. measure of importance— the al- 
mighty dollar— it is reported that 
current economic activity in just that 
portion of the sea area known as the 
Continental Shelf is in the magnitude of 
multibillions of dollars. 

The dramatic increase in the national 
and international efforts being made in 
this area directly reflects the increased 
attention being focused on the Conti- 
nental Shelf and deep ocean floor by 
previously disinterested nations. This 
increased interest and involvement 
carries important implications for many 
of the Navy's ocean-based activities. 

If the deliberations on near shore and 
deep ocean seabed problems could be 
described in a single word, that word 
would be diversity; diversity of desires, 
of technological capabilities, and of 
expectations. In addition to navigational 
and related uses, the ocean waters and 
the bed of the sea are now commercially 
producing oil and gas, salt, bromine, 
magnesium, sulphur, and other minerals, 
not to mention the vast variety of 
products of the fishing industry. It is 
not surprising that legal principles 
proposed for this new frontier are as 
numerous and divergent as its material 
potential. 

There are numerous national posi- 
tions as to the importance and priority 
to be attached to the establishment of 



246 



legal principles in the ocean environ- 
ment. Thus, it has unquestionably be- 
come an arena in which private and 
governmental interest is generating pres- 
sure for development and legal change. 

Domestically such pressures resulted 
in passage of the Marine Resources and 
Engineering Development Act in 1966. 
This act established a Cabinet-level Na- 
tional Council on Marine Resources and 
Engineering Development and a Com- 
mission on Marine Science, Engineering 
and Resources. The Navy, from the 
Secretarial level down, has played a 
major role in the deliberations of the 
Council, Commission, and the many 
subordinated interagency working 
bodies established under them. The 
Office of the Judge Advocate General 
has been consulted more and more 
frequently as the legal facets of techno- 
logical and scientific problems became 
apparent. 

While the National Council and the 
Commission has focused primarily on 
the long-range needs of a national 
oceanographic program, there has been 
a dramatic increase in the tempo of 
ocean-oriented activities at all levels of 
the U.S. Government. New international 
involvement in the area of ocean- 
ography is well illustrated by the resolu- 
tion introduced by Malta at the United 
Nations in the summer of 1967. This 
resolution proposed restricting use of 
the seabed to peaceful purposes and 
establishment of a legal regime which 
would insure that the proceeds of deep 
ocean mineral wealth would be used to 
aid developing countries. 

This and other proposals pointed up 
the need in the U.S. Government for a 
high-level permanent interagency com- 
mittee which could focus on the day- 
to-day problems of preparing and pre- 
senting U.S. positions in relation to the 
Continental Shelf and deep ocean floors 
in various international forums. This 
need was met this past February by the 
creation of the Interagency Committee 
on International Policy in the Marine 



Environment under the chairmanship of 
the Deputy Under-Secretary of State. 
The Assistant Secretary of the Navy 
(Research and Development) is the De- 
partment of Defense representative on 
this committee. 

The Continental Shelf and deep 
ocean floor questions required immedi- 
ate attention by the new Interagency 
Committee both because of the ongoing 
meetings of the United Nations Com- 
mittee on the Seabeds, which was estab- 
lished following the Malta resolution, 
and because numerous private groups 
and Government agencies were urgently 
seeking clarification of the jurisdictional 
limits of the U.S. Continental Shelf. 
Accordingly, a Working Group on the 
Shelf and Deep Ocean Floor, abbrevi- 
ated as SADOF, was established. I have 
been privileged to be appointed the 
Department of Defense representative 
on this working group. 

The active role played by the Depart- 
ment of Defense, and particularly the 
Navy, in the long-range studies and 
policy planning work of the National 
Council, the Commission, and the Inter- 
agency Committee is surprising and dis- 
turbing to some. This reaction is based 
on the fact that most of the broad range 
of oceanographic problems concerns 
civil or peaceful uses of the oceanic 
environment, with particular emphasis 
on the extraction of its mineral and 
living resources. There are, however, 
several good reasons for the interest and 
concern of the Department of Defense 
and, in particular, the Navy. 

First, the Navy manages numerous 
programs which have potential civilian 
as well as military applications. Its 
well-known Man-in-the-Sea program 
alone is developing numerous new tech- 
niques useful in many phases of the 
offshore oil industry. In fact, the Navy 
spends approximately half of all govern- 
mental monies available within the 
United States for scientific research and 
technology development which have 
oceanic applications. 



247 



Second, it is reasonable to assume 
that the military will play an important 
role in affording protection to U.S. 
citizens and to their personal property 
that may be placed on the seabed of the 
Continental Shelf, or beyond, to be 
used in scientific or extractive opera- 
tions. It is important, therefore, for the 
Department of Defense to understand 
the needs and rights of such operators 
so that the protection afforded will be 
both reasonable and lawful and thus 
minimize the risk of conflict. 

The third reason for our interest is 
that it is important that modes of 
accommodation be developed to insure 
that military activities do not unreason- 
ably interfere with new usages or im- 
pede future progress made possible 
through new technology. Already, new 
means of coordinating oil drilling opera- 
tions and Navy weapons testing along 
the California coast have been found. 

The fourth and most compelling rea- 
son for the Navy's direct interest and 
concern with these developments is that 
implementation of many proposals 
would create an implicit acceptance of 
additional constraints and controls on 
military activities. Proposals which 
would, on the one hand, increase na- 
tional jurisdiction over coastal waters, in 
a qualitative or quantitative sense, or, 
on the other hand, place the seabed of 
the deep oceans under the control of an 
international agency could have a sig- 
nificant impact on the historic principle 
of freedom of the seas. It is of particular 
importance to avoid arrangements 
which would result in the degradation 
of the right of warships and submarines 
to navigate on and under the high seas. 
Any arrangements— if they are to be 
reflective of our overall national inter- 
ests—must recognize that the oceans are, 
and will continue to be, vital to our 
national security. 

Thus, Navy participation in our na- 
tional deliberations has been considered 
both necessary and desirable to ensure 
that national security interests are fully 



considered in the course of developing 
both long-range criteria and immediate 
policy initiatives. 

During the past year it has become 
increasingly clear that fundamental 
issues of international law of the sea are 
intertwined with and underlie the devel- 
opment of a comprehensive oceano- 
graphic program. Virtually all arrange- 
ments being discussed either rely on or 
modify historic principles of interna- 
tional law. Accordingly, the lawyers 
within the various agencies have played 
an increasingly active role in the con- 
sideration of these issues. 

The most immediate area of interest 
to international lawyers is the Conti- 
nental Shelf. This area, in geological 
terms, is the extension of the continen- 
tal mass which gently slopes out from 
the world's coasts. It extends in some 
places further than 200 miles before a 
sudden break in grade, normally located 
at about the 200-meter depth curve, 
plunges into the deep ocean abyss. The 
Continental Shelf is most easily acces- 
sible to man's developing marine tech- 
nology; and lawyers are now compelled 
to consider its legal status by the bur- 
geoning commercial and scientific 
activity made possible by its relatively 
shallow superadjacent waters. 

The Shelf and Deep Ocean Floor 
Working Group referred to previously 
which, by the way, is composed pri- 
marily of lawyers, is presently engaged 
in developing recommendations on two 
fundamental questions of mixed policy 
and law. One is the question of how and 
where the outer limit of the regime of 
the Continental Shelf should be further 
delineated. The second is what type of 
legal regime should be negotiated re- 
garding the ocean seabed and its re- 
sources beyond the outer limit of the 
Continental Shelf. 

President Truman initiated the Conti- 
nental Shelf regime in 1945 when he 
unilaterally proclaimed that the United 
States would exercise exclusive jurisdic- 
tion and control over the natural re- 



248 



sources of the seabed and subsoil of our 
adjacent Continental Shelf. In a press 
release which accompanied the Truman 
Proclamation, the area was described as 
including all of the ocean floor "con- 
tiguous to" the coasts of the United 
States to a depth of 600 feet— which is 
approximately 200 meters. 

A mere 13 years later the Continen- 
tal Shelf regime was codified by the 
1958 Geneva Convention on the Conti- 
nental Shelf. The Convention, however, 
describes the outer boundary of the 
regime in somewhat less than precise 
terms. 

Article 1 provides that the term 
"Continental Shelf" refers to the seabed 
and subsoil of the submarine areas 
adjacent to the coasts but outside the 
area of the territorial sea to a depth of 
200 meters or, beyond that limit, to 
where the depth of the superadjacent 
waters admits of the exploitation of the 
natural resources of the said areas. Thus 
the Continental Shelf regime becomes 
applicable beyond the 200 meter iso- 
bath as new technology such as new 
types of Texas Towers or even com- 
pletely submerged installations allows 
commercial extraction of oil and gas 
resources at greater depths. This, of 
course, is an open ended definition- 
depth of 200 meters or depth of ex- 
ploitability. 

The exploitability test does not meet 
the normal legal requirements of cer- 
tainty. However, it does have the advan- 
tage of flexibility and makes the Con- 
vention applicable without change to 
future situations brought about by new 
technology. Of course, this second cri- 
terion tends to make the scope of the 
Convention ambiguous and has already 
created heated discussions and divergent 
views among international lawyers. 

As the U.S. Department of Interior 
has already leased areas beyond the 200 
meter isobath, the question of the per- 
missible scope of the exploitability test 
is no longer academic. Considering the 
emerging technological capabilities 



possessed by the United States and 
other leading maritime powers and the 
fact that the Convention by its own 
terms is open for amendment in 1969, 
the Department of Defense has agreed 
that the question should be examined as 
to how the rather vague exploitability 
criterion should be modified. Accord- 
ingly, the United States tabled several 
months ago a proposal before the 
United Nations Committee on the 
Seabeds that there should be established 
as soon as practicable an internationally 
agreed, precise boundary between the 
deep ocean floor and the regime of the 
Continental Shelf. This, then, is the 
basis for urgency behind the first of the 
specific tasks assigned to the Working 
Group on the Shelf and Deep Ocean 
Floor— to develop a recommended U.S. 
position on the question of how the 
Continental Shelf outer boundary 
should be established and where it 
should be. 

At least four "legal" issues are basic 
to an evaluation of the relative de- 
sirability of various proposed outer 
boundaries, and the working group de- 
liberations have revolved around these 
issues to date. 

The first is an examination of the 
qualitative nature of the present Conti- 
nental Shelf regime. That is, what rights 
and duties does the Convention on the 
Continental Shelf impose upon a nation 
possessing a Continental Shelf, and do 
these rights and duties apply to non- 
signatory nations? Numerous questions 
remain under the Convention regarding 
types of allowable scientific research 
activities and other matters. The de- 
sirability of an outer boundarv formula 
which produces a broad Continental 
Shelf depends, for a maritime nation 
with worldwide interests such as the 
United States, in large part upon the 
types of activities on and over the shelf 
regime which can be regulated and how 
they can be regulated. In this regard the 
relevancy of applicable domestic legisla- 
tion must also be determined. 



249 



Closely related to this question is the 
effect which the location of a boundary 
will have on traditional freedoms of the 
sea exercised either within the waters 
over the shelf or outside the new bound- 
ary. What types of new limitations on 
transits by surface vessels will develop, 
for example? The establishment of a 
precise boundary in and of itself might 
stimulate nations to increase the degree 
of control they exercise over events 
landward of that boundary, but it might 
also tend to insure that events seaward 
of the boundary were protected from at 
least some types of claims to national 
jurisdiction. 

Thirdly, what impact will the bound- 
ary have on the difficulties or chances 
of effectuating a satisfactory regime for 
the exploitation of the resources be- 
yond the boundary? If the boundary is 
far seaward, for example, there are few 
known resources whose exploitation 
would be affected by a deep ocean 
regime in the near future. 

Finally, by what methods or pro- 
cedures may the boundary be changed? 
Is it possible, in other words, to estab- 
lish a precise boundary through inter- 
pretation of the Shelf Convention, or is 
further legislation or a new treaty neces- 
sary to alter the status quo? In this 
regard it should be noted that though 
there is little specific reference to how 
far and how deep the shelf regime could 
extend under the exploitability criterion 
in the 1958 Convention working docu- 
ments and debates, it would seem that 
the exploitability test of the Convention 
is, in fact, limited by the requirement of 
reasonable proximity to the coast and 
reasonable relationship to the geologic 
Continental Shelf. 

The question as to what the most 
desirable limit should be— from the 
standpoint of national security— is a 
complex one. The qualitative nature of 
lawful restrictions upon military activi- 
ties sought to be undertaken on a 
foreign Continental Shelf are not yet 
clearly defined. It is clear, however, that 



military activities may not be under- 
taken on or above a foreign shelf which 
would interfere with that nation's right 
to explore its shelf or exploit its re- 
sources. 

The Navy is presently examining the 
military implications of various pro- 
posals for specific outer limits. These 
proposals range from 200 meters to 
4,000 meters in depth and from 50 
miles to 200 miles from shore or a 
combination of both depth and distance 
criteria. Without attempting to prejudge 
the conclusion of these Navy studies 
and the work of SADOF, the general 
conclusion appears warranted that a 
relatively narrow Continental Shelf 
regime would best serve the security 
interests of the United States. The 
conclusion that our military interests 
are best served by a restrictive definition 
is to a considerable extent, however, 
based upon the nature of an agreed deep 
ocean regime that will evolve beyond 
the Continental Shelf. 

Our SADOF Working Group has also 
been tasked to develop recommenda- 
tions regarding a regime for the deep 
oceans beyond the Continental Shelf. In 
this connection the United States re- 
cently tabled at the U.N. Committee on 
the Seabeds certain basic principles to 
be used as a basis for internationally 
agreed arrangements for the exploita- 
tion and use by states of the deep ocean 
floor and its subsoil. The fundamental 
principle proposed was that no state 
may claim or exercise sovereign rights 
over any part of the deep ocean floor. 

This is not to say that the explora- 
tion and use of the deep ocean floor or 
the exploitation of its resources are 
prohibited. The deep ocean floor may 
be used for nonmilitary or military 
activities under existing principles of 
international law pursuant to the con- 
cept of the freedom of the seas- 
recognizing, of course, that reasonable 
regard must be given to the interest of 
other states in their exercise of high seas 
freedoms. In addition, there is agree- 



250 



ment among most international lawyers 
that minerals lying beyond the regime 
of the Continental Shelf may be law- 
fully exploited, and the exploiter is 
entitled to keep what he finds. 

A question does exist, however, as to 
whether an individual or nation may 
claim some form of interest in areas 
adjacent to an exploitative activity and, 
if so, how large such areas can be. In 
this regard it is reasonable to conclude 
that in the not too distant future, 
clarification of such rights will be neces- 
sary in order to render deep ocean 
exploitative operations both feasible 
and profitable. 

The development of a specialized 
system for the exploitation of resources 
varying from the high seas rights men- 
tioned a moment ago is predicated on 
the assumption that a regime that vests 
an exclusive right to the resources only 
after they are extracted is not reflective 
of the economic needs of the exploiter 
of mineral resources. Quite frankly, it is 
also predicated on the assumption that a 
system should be devised which will 
permit all nations to share in the ocean's 
wealth— either directly or indirectly. 

There are at present many possible 
regimes under consideration. They 
generally fall into the following cate- 
gories: 

First, the Flag state proposal: Under 
this system the nation would assume 
responsibility over an exploitative 
operation as if it were conducted on a 
vessel of its registry. The state of the 
exploiter would have a protective inter- 
est in the resource to be exploited 
within a reasonable area. 

Secondly, an International registry: 



Under the system an international 
agency would register a national claim 
with some authority regarding com- 
peting claims, thus validating the state's 
claim. 

Thirdly, complete Internationaliza- 
tion: Under this system an international 
agency would "own" the resources of 
the seabed of the deep oceans. In effect, 
permission from the agency would be 
necessary before any exploitation took 
place. 

A combination of these alternatives 
is also possible. For example, some form 
of international registry of claims in 
conjunction with a system of flag state 
jurisdiction and control deserves serious 
consideration. From the national 
security standpoint, such a system 
might even be advantageous for it might 
tend to reduce the risk of economic 
conflict or territorial claims and, at the 
same time, not materially interfere with 
or constrain peacetime military activi- 
ties and deployments. 

The final choice of the most favor- 
able deep ocean regime alternative has 
not been made in SADOF or other 
national forums. As with the question 
of a precise outer boundary for the 
Continental Shelf, much work remains 
before the solution most beneficial to 
our composite national interest is 
found. In the course of this work, 
however, one underlving fact stands 
out— the oceans are becoming more, not 
less, essential to the security and well- 
being of most, if not all, of the peoples 
of the world. And this fact alone dic- 
tates that we should be more, not less, 
deliberate at arriving at irreversible de- 
cisions. 



t 



251 



CURRENT INTERNATIONAL LAW PROBLEMS 

OF THE NAVY 

Joseph B, McDevitt 



It is always a pleasure for me to be 
here at the War College to discuss with 
you some of the current problem areas 
that we face in international law. 

When we speak of the Navy's area of 
operations at sea, we are speaking of air, 
surface, and subsurface operations in an 
area which is almost entirely beyond the 
sovereign territory of the United States 
and any other nation. Our right to use 
this area is determined largely by a 
variety of rules of international law. 

There are many kinds of thread 
woven into the fabric known as interna- 
tional law. Whether written or un- 
written, international law represents the 
consensus of the community of nations. 

It is evidenced in part by interna- 
tional conventions which are binding on 
stales by agreement and, in many cases, 
are binding because they codify cus- 
tomary international law. 

It is in part represented by slate 
practices of long standing which, though 
never formalized, have been accepted, 



shared, or acquiesced in by the other 
members of the community of nations. 
It is reflected by the decisions of the 
International Court of Justice and the 
decisions of the highest courts of the 
various countries. 

It includes the teachings and writings 
of eminent publicists who have studied 
the relationship between states in the 
light of the times in which they lived. It 
is this package that comprises the bulk 
of international law. 

Though the concept of international 
law may lack a preciseness to be found 
in municipal law, nevertheless it pro- 
vides accepted standards for the mea- 
surements of the conduct of nations. 

Our national policy is formulated 
and executed within the framework of 
the law of nations. We are a party to 
many alliances of collective security 
such" as NATO, SIvATO, the Organiza- 
tion of American Slates, among others. 
We are bound by the accepted customs 
and practices between nations and by 



252 



international conventions thai both 
prescribe and proscribe conduct botb in 
peace and in war. 

International law is, of course, not a 
completely effective instrument for in- 
ternational peace. Hut it has progressed 
toward minimizing resort to war or 
armed conflict as a method of settling 
international disputes. When it fails to 
prevent armed conflict, it still operates 
to impose rights and duties on parties 
and nonparties to the conflict. More 
importantly, it provides peaceful al- 
ternatives to armed conflict. 

International law does not have a 
system of sanctions as we define and 
understand the term in municipal law, 
but this does not indicate that interna- 
tional law is a myth, merely that it has 
limitations. The same could be said of 
any specialized legal system. There are 
many sanctions under international law 
which do work effectively. Among the 
most obvious and effective of these is 
the promise of reciprocation— either 
favorable or adverse. This provides a 
strong reason for states to observe the 
rules. 

Reconciling legal equality with politi- 
cal inequality remains a serious impedi- 
ment to the development of interna- 
tional law. But effective seapower exer- 
cised in support of the rule of law can 
be a positive force in providing a stable 
background for the continued growth 
and acceptance of international law. 

One area of international law of 
primary interest to the Navy is the law 
of the sea. We are in a time when the 
oceans are being taken into a sphere of 
politics; a plethora of newspaper and 
periodical articles on the law of the sea 
comes from all nations and conse- 
quently creates a growing pressure on all 
governments to publicly justify their 
legal positions in this area. 

There has developed an alarming 
tendency for complex international 
legal issues to become political foot- 
balls. The dispute over the status of the 
waters off portions of the coast of 



South America has been straining rela- 
tions between the United States and a 
number of South American nations for 
almost two decades. However, after a 
series of preliminary meetings, the 
United States entered into discussions 
with ("bile, Ecuador, and Peru in August 
of last year aimed at arriving at a 
solution to this problem. 1 was in 
attendance for a portion of these dis- 
cussions. They are still in their prelim- 
inary' stages and therefore I cannot 
elaborate on them except to note that 
sitting down at a conference table is a 
first positive step taken toward the 
resolution of this persistent dispute over 
the right to use extensive areas of the 
high seas. The heated controversy and 
diplomatic crisis occasioned by the tuna 
boat seizures point up the danger in- 
volved in unilateral coastal state claims 
to sovereignty over areas of the high 
seas. 

Even more dramatic and tragic events 
have underlined the absolute necessity 
for arriving at uniform international 
legal regimes for the world's oceans. 
These were the seizure of the U.S. 
intelligence ship Pueblo and the subse- 
quent destruction of an unarmed recon- 
naissance aircraft by North Korea. 
These incidents occurred on or over 
high seas areas. In the United States, in 
the wake of the North Korean incidents, 
the Congress has considered a legislative 
proposal which would have undercut 
our present position on the 3-mile limit 
for the breadth of the territorial sea and 
would have greatly hindered any change 
for the formulation of any uniform 
international limit in the future. This 
proposal (S.J. Res 84) would have estab- 
lished a territorial sea which could vary 
from 3 to 12 miles, depending on the 
extent of the territorial sea claimed by 
the other country involved; in other 
words, a territorial sea based on mutu- 
ality. Administrative problems aside, the 
problem with this is that it would have 
been tantamount to recognition of the 
legality of exercising any measure of 



253 



territorial sea jurisdiction out to J 2 
miles. A Senate vote on this proposal 
was averted only after extensive brief- 
ings by 1)01). Phis incident demon- 
strated the danger to operational mo- 
bility of recognizing the unilateral 
extension of a nations territorial sea 
without providing for adequate safe- 
guards for navigation rights. 

Frequently, however, the easiest way 
to lose a right is to press it to the 
extreme. For example, until the he- 
ginning of this century, it was generally 
agreed that 3 miles was the maximum 
breadth of the territorial sea and that all 
areas beyond were high seas in which all 
nations, among other things, had an 
equal right to fish. Since World War II 
several nations- notably Japan and the 
Soviet Union— have developed huge fish- 
ing fleets which can operate off the 
coasts of foreign countries thousands of 
miles away. The first sign of reaction 
came in Latin America, where, as I have 
mentioned, several states proclaimed 
either 200-mile territorial seas or 
200-mile exclusive fishing zones, in 
order to control distant water fleets. 
Then in 1964 some of the most con- 
servative 3-mile states in Western 
Europe signed the European Fisheries 
Convention which, in effect, reserved all 
fisheries out to 12 miles to these states. 
Subsequently, in 1966, the United 
States— the country which has the most 
to gain from free use of the seas and the 
airspace above them— itself declared a 
9-mile exclusive fisheries zone extending 
seaward from the outer limits of our 
3-mile territorial sea. 

The establishment of this zone is an 
example of how DOD, and the Navy in 
particular, must recognize and evaluate 
significant nonmilitary national pres- 
sures if the present dimensions of the 
high seas are to be maintained. 

Public Law 89-658 of 14 October 
1966 established the 9-mile contiguous 
fishing zone. The Senate report on this 
legislation makes it prefect ly clear that 
this was a reaction to intensive foreign 



fishing operations off our coast. Jn 
earlier years the Navy had opposed such 
legislation. It feared that the establish- 
ment of the fishing zone would be the 
first step toward the undesirable forma- 
tion of a 12-mile territorial sea. 

In 1966 the Navy merely entered no 
objection to the zone— it did not sup- 
port the establishment of the zone. In 
retrospect, that may have been a mis- 
take since the U.S. 12 mile fisheries 
zone lends credence to an approaching 
12-mile territorial sea. The argument 
that such a zone was needed because of 
Soviet intelligence activities was ad- 
vanced by the interests that wanted the 
zone established. It was never stated 
that the AGIs— though they might have 
trawler hulls— were warships and not 
fishing vessels. 

Since the enactment of Public Law 
89-658, there have been constant efforts 
on the part of various interested lobbies 
to widen the scope of the law to 
prohibit all manner of activities to 
foreign fishing vessels within the zone, 
not just the extraction of fish from the 
zone. 

The most recent effort accomplished 
the enactment of Senate bill 1752 (S. 
1752) over opposition by the Depart- 
ment of Defense. The wording of this 
amendment, which makes it unlawful 
for any non-U. S. vessel "to engage in 
activites in support of a foreign fishery 
fleet" within the contiguous fishing 
zone or territorial sea, could be mis- 
interpreted as authorizing interference 
with activities which do not have any 
relation to the protection of living 
resources of the territorial sea or fish- 
eries zone. 

This is but a single illustration of 
how specialized legislation can have 
highly undesirable side effects. The 
DOD continues to maintain that the 
fisheries zone is high seas for the pur- 
pose ol navigation and that to qualify 
the right to navigate or operate in the 
area could be seen by others as a claim 
of a 12-mile territorial sea rather than a 



254 



contiguous fisheries zone. A series of 
similar special-purpose hills could he 
extremely detrimental to our presently 
avowed position supporting the mainte- 
nance of the 3-mile territorial sea rule. 

The United Slates initially supported 
the 3-mile limit in 1793 when Secretary 
of State Jefferson informed the British 
and French Ministers that the United 
Slates had adopted a 3-mile zone; it has 
never claimed a greater distance as the 
hreadth of the territorial sea. It has been 
the traditional position of the United 
States, moreover, that the 3-mile limit is 
not only domestic law hut that 3 miles 
has been the maximum breadth of the 
territorial sea it need recognize oft the 
coasts of other states. The United States 
has continued to support the doctrine 
of the freedom of the seas by vigorously 
opposing the claims of other govern- 
ments to extend unilaterally their terri- 
torial seas beyond 3 miles. 

This problem of the gradual uni- 
lateral extension of the territorial sea of 
coastal stales exists where military 
operations are concerned. All of us 
know that if the United Stales forced 
Soviet warships to stay, let us say, at 
least 200 miles from our coast, then not 
just the Soviet Union, but every country 
in the world, would have a basis to 
demand that American warships stay 
200 miles from their coasts. 

Hut when you have to explain this to 
a newspaper editor who is involved in a 
crusade against the presence ol Soviet 
intelligence ships off our coast, you are 
put in the difficult position of saying 
that, on balance, the defense of the 
United States is better served if we let 
those Russian ships stay there. But, I 
ask you, would this be true if it were 
not for the worldwide deployment oi 
our air and naval forces? It is therefore 
not surprising that many developing 
countries which perceive no direct inter- 
est in using the seas at great distances 
from their shore feel that there is 
something to gain and very little to 
lose- in extending their territorial seas. 



The Navy is one of the strongest 
supporters of freedom of the seas. While 
new and varied uses are emerging, navi- 
gation and commerce remain the most 
valuable uses of the ocean. Efforts by- 
coastal states to impose unjustifiable 
restrictions and to improperly en- 
compass world sealanes within claimed 
territorial waters must be resisted. Such 
unilateral attempts to extend sovereign 
control will create confrontation situa- 
tions with great potential for conflict. 
Very important problems of mobility 
are involved. For example, while the 
right of innocent passage of vessels 
through international straits may not be 
suspended, there are disputes regarding 
the application of this right to warships 
and regarding the application of the 
criteria for identifying international 
straits. Should the right to establish a 
broader territorial sea be conceded with- 
out concomitant guarantees of passage 
through waters of straits, interpretation 
of the right of innocent passage would 
become extremely critical. For example, 
some states have claimed a unilateral 
right to determine what kinds of passage 
are innocent even when, by objective 
standards, passage is clearly not pre- 
judicial to peace, good order, or security 
within the coastal state. Well over 100 
straits which would be within the sover- 
eign territory of coastal states if, for 
example, a 12-mile territorial sea were 
conceded, might then be closed to 
transit by possibly capricious interpreta- 
tions of the right of innocent passage. 
The Straits of Gibraltar, Dover, Bab el 
Mandeb. and Malacca would be among 
them. The disruptive effect that such 
actions might have on our naval opera- 
tions is obvious. Unless navigational 
guarantees are internationally recog- 
nized by international agreement, the 
ll.S. INavy cannot afford to lend its 
support or recognition to unilateral ter- 
ritorial sea claims in excess of 3 miles. 
Neither eoidd the \ir Force, I mijihl 
add, since no right of innocent passage 
for stale aircraft exists on the airspace 



255 



above territorial waters. Of course, one 
factor which could significantly affect 
our continued adherence to the 3-mile 
policy would be to negotiate, preferably 
on a multilateral basis, for the mainte- 
nance of high seas passageways through 
international straits regardless of the 
breadth of the territorial sea. Such a 
development would mitigate possible 
extensions of territorial seas without 
unduly jeopardizing the worldwide 
mobility of our naval forces. 

Jn addition to the international prob- 
lems raised by the dispute over the 
proper breadth of territorial seas, there 
are additional problem areas involving 
the oceanic regimes which are of inter- 
est to the Navy. The continued dis- 
covery of new sources of both minerals 
and foods in the seas and on the ocean 
floor has occasioned a fantastic increase 
in the emphasis on the development of 
our technological ability to extract 
these resources on a practical and com- 
petitive basis. In any area in which rapid 
utilization oecurs, the development ol a 
set of valid rules or guidelines to sale- 
guard against conflict among the various 
users will be necessary. The develop- 
ment of such a set of rules is of prime 
interest to the Navy. We will un- 
doubtedly be called upon to protect our 
nationals and their economic- activities 
on the ocean floor beyond what are 
now recognized as areas of coastal sover- 
eignty. Equally important will be our 
task of ensuring the proper utilization 
of these seabed areas in the preservation 
of our national security. 

The seabed areas to which I have 
been referring are generally divided into 
two principal regimes: the Continental 
Shelf and the deep ocean floor. 

The Continental Shelf is defined by 
the 1 958 Geneva Convention on the 
Continental Shelf as the seabed and 
subsoil of the "the submarine areas 
adjacent to the eoasl but outside the 
area of lite territorial sea, to a depth of 
200 meters, or beyond that limit, to 
where the depth of the superjacent 



waters admits of the exploitation of the 
natural resources of said areas." This 
convention embodies what we may call 
the international law of the Continental 
Shelf. The rules laid down by this 
convention further provide that the 
coastal state shall exercise "sovereign 
rights" in these areas for the purpose of 
exploration and exploitation of the 
natural resources of the seabed and 
subsoil thereof. It must be noted that 
this important convention affects only 
exploration and exploitation of the 
natural resources on the shelf. The 
consent of the coastal state must be 
obtained "in respect of any research 
concerning the Continental Shelf and 
undertaken there." The convention, by 
its own terms, in no way affects the 
character of the superjacent waters as 
high seas which remain open to all and 
subject to the sovereignty of no nation. 

The Continental Shelf is becoming 
increasingly important as the techno- 
logical ability to exploit its resources 
advances at an ever-accelerating rate. An 
increasing number of corporations 
throughout the world are taking an 
active interest in undersea operations. 
They are developing tools and tech- 
nology for extended operations on the 
Continental Shelf. The scientific and 
academic communities are also con- 
ducting many research and development 
projects aimed at increasing man's effec- 
tiveness beneath the ocean's surface. 

At present the extent of a nation's 
jurisdiction over the resources of the 
Continental Shelf is governed by the 
"200 meter or exploitability depth" test 
of the 1958 Continental Shelf Conven- 
tion. This convention, however, con- 
tains no precise definition of the outer 
boundary of the shelf. As a result, 
domestic and international controversy 
has arisen as to the ultimate boundary 
of a nation's Continental Shelf. The 
waters have become more and more 
muddy as the arguments concerning 
various boundary theories proliferate. 

The United States has been a leader 



256 



in discussions of this complex issue in 
many international forums. It is particu- 
larly likely that this matter will receive 
considerable attention in the United 
Nations Seaheds Committee. The 
United States has clearly indicated the 
importance of establishing a precise 
Continental Shelf boundary and has 
supported the principle that as soon as 
practicable an internationally agreed 
boundary should be determined. 

The complex problems involved in 
arriving at a precise outer boundary for 
the Continental Shelf have not damp- 
ened world interest in discussing regimes 
for the deep ocean floor beyond the 
Continental Shelf. This broad expanse— 
almost 7 miles deep at points— is largely 
unknown and unexplored. Yet the very 
mystery of the deep ocean floor stimu- 
lates some to assume that it is a vast 
storehouse of easily available riches. 
This, in turn, has prompted lively inter- 
est in the legal problems involved in the 
utilization of this area. The Navy is, of 
course, also interested in these problems 
from the standpoint of the military 
utilization of these seaheds. 

Some have suggested that we divide 
the ocean floor between coastal states 
with median lines, much the same way 
as the seabed in the North Sea has been 
divided. We must consider the fact that, 
under a median line formula, the United 
States would receive only a very narrow 
strip in the Atlantic and that small 
islands in the Pacific, some under Euro- 
pean control, would become the center 
of enormous seabed domains. 

Others have urged turning the deep 
ocean seabed over to the United Na- 
tions. Ambassador Pardo of Malta has 
proposed creating a new international 
authority with broad powers to adminis- 
ter and police the deep ocean floor. 
Senator Pell of Rhode Island has 
slopped short of this, proposing that the 
United Nations be given leasing au- 
thority over the deep ocean floor in 
much the same way as the Interior 
Department has leasing authority over 



our Continental Shelf. 

There are, however, respected voices 
in both national and international 
forums which urge that wc have loo 
soon become intoxicated with the 
promise of riches in the deep oceans; 
that we have little idea of what is to be 
found there and will not be able to 
conduct economical operations in this 
area for many years to come. These 
people urge that mankind has a far 
greater interest at this time in a unified 
effort to explore the ocean floor than in 
becoming embroiled in premature legal 
and political disputes. 

The problems involved in regulation 
of a largely unknown environment have 
been involved in recent seabed dis- 
armament discussions. The United 
States has constantly advocated steps to 
avoid the seabeds becoming an arena for 
another round of the arms race and has 
now agreed with the Soviet Union on a 
draft treaty which was presented to the 
Conference of the Committee on Dis- 
armament (CCD) in Geneva recently. 
The joint draft treaty would prohibit 
emplanting or emplacing any objects 
with nuclear weapons or any other 
types of weapons of mass destruction as 
well as structures, launching installa- 
tions, or other facilities specifically de- 
signed for storing, testing, or using such 
weapons on the seabed and ocean floor 
or the subsoil thereof. The treaty pro- 
hibitions would apply beyond the maxi- 
mum contiguous zone provided for in 
the 1 ( )58 Geneva Convention on the 
Territorial Sea and Contiguous Zone. 

Certainly agreement on this draft 
treaty indicates that on important items 
of significant interest cooperation be- 
tween the worlds two superpowers is 
feasible. However, it must also be noted 
that whatever the outcome of the sea- 
beds disarmament talks or the ultimate 
form of any treaty which may emerge, 
the many and diverse views expressed in 
these negotiations thus far clearly point 
up the need for further hard knowledge 
of the deep ocean floor. 



257 



From the point of view of the Navy, 
it may he in our hest interest with 
respect to the deep ocean floor to 
follow those who insist that we apply 
the doctrine of freedom of the seas. In 
this case there would be no distinction 
in international law between the legal 
status of the high seas and that of the 
subjacent seabed beyond the Continen- 
tal Shelf. Where navigation of subma- 
rines is involved, we certainly are in- 
terested in free seas. With respect to 
deep submersibles that will transit the 
bottoms by partial physical contact 
with the bottom, we are anxious to 
preserve free navigation on the ocean 
floor. Nevertheless, there will be those 
who will advocate the adoption of a 
doctrine recognizing the seabeds areas as 
being capable of being appropriated by 
the first occupier. With the advent of 
mining operations on the deep ocean 
floor, it is inevitable that there will be 
those who will, in the interest of devel- 
oping the resources of the sea, seek state 
protection of areas capable of exploita- 
tion. This may lead to claims of outright 
sovereignty of the deep ocean floor. If, 
ultimately, national control is estab- 
lished to the full depth of the ocean, 
effectively 20,000 feet, then there exists 
the complex and politically hazardous 
international task of dividing a territory 
more than three times as large as« that of 
the worlds landmass. 

A reasonable accommodation of 
users in accordance with the doctrine of 
freedom of the seas may be the most 
promising approach at this stage. As- 
suming the remote possibility that a 
conflict between two exploiters of the 
deep ocean floor were to arise in the 
immediate future, it is clear that such a 
controversy would be governed by inter- 
national law. At the very least, the 
principle of freedom of the seas would 
apply. It has been accepted by seafaring 
nations for centuries that freedom of 
the high seas shall be exercised with a 
reasonable regard to the interests of 
other states in their exercise of the 



freedom of the seas. 

Today we face a plethora of fishing 
interests and oil interests, as well as 
political interests which view the oceans 
as an area of experimentation in interna- 
tional organization. 

These interests have at their disposal 
a large battery of extremely competent 
and aggressive legal representatives. 
Each group appears to be single- 
mindedly pursuing its own ends. Cer- 
tainly, these diverse interests can and 
will be accommodated in a friendly 
manner. But, the only way in which the 
Navy can hope to advance its mission to 
safeguard the national security is to 
meet these challenges with equal prepa- 
ration and expertise. Everyone can 
come up with a mockup of defense 
reasons for supporting any proposal. 
The challenge is for the Navy to take 
the lead by making fine "on ballance" 
military decisions and advancing them 
persuasively and in unison. 

The lawyer can do no more than help 
his client decide and then do everything 
possible to insure that his client suc- 
ceeds. For this we need penetrating 
analysis and deep reflection, with the 
sober realization that severe restrictions 
on the Navy's right to go where it needs 
on and under the seas will hamper its 
vital mission and inevitably affect its 
central role in U.S. strategic and tactical 
planning. 

Man has now stepped on the moon 
—which dramatically reminds us that no 
area will remain forever inaccessible to 
mankind. However, the first footprints 
on the lunar surface do not constitute a 
superhighway which requires immediate 
formulation of an extensive traffic regu- 
lation code. Likewise, the first steps of 
man into the depths of ocean space do 
not signal the need to immediately 
abandon the international law of the sea 
which has evolved over hundreds of 
years. This body of law cannot and 
should not be prematurely replaced 
with new legal regimes designed to meet 



258 



new needs and uses which are at best 
only partially foreseeable. 

Even with regard to the classic use of 
the surface of the high seas for naviga- 
tion, we are faced with immediate and 
perplexing international legal problems. 
An example of such a problem has 
arisen as a result of the rapid Soviet 
buildup of naval forces in the Mediter- 
ranean Sea. 

Since the Arab-Israeli war in June 
1967, we have been faced with this 
important naval confrontation in the 
Mediterranean. The strategic and politi- 
cal implications of this confrontation 
are weighty indeed. However, I would 
like to describe briefly the legal context 
in which the Soviet Fleet, and in par- 
ticular its submarine fleet, meets the 
American Fleet. 

There is nothing unique in having 
large naval fleets of two potentially 
hostile maritime powers deployed on 
the high seas in peacetime. Indeed, I can 
think of no extended period of time in 
modern history when this has not been 
the case. It is only natural for these 
fleets to seek maximum information 
regarding their respective operations and 
deployments. There is no legal prohibi- 
tion to observation of naval operations 
on the high seas. Such activities are 
lawful so long as the observer does not 
unreasonably interfere with the activi- 
ties of the observed vessels— and vice 
versa. Specifically, when the vessels are 
near each other and there may be risk of 
collision, they must respect the detailed 
"rules of the road" established by the 
international regulations for preventing 
collisions at sea. 

However, from a legal point of view, 
vessels engaged in ASW operations 
present somewhat unique problems. 
These problems arise from the fact that 
although there are highly detailed navi- 
gational rules regarding surface ships 
which are near each other, this is not 
the case with submerged submarines. 
The international rules of the road 



generally apply only to vessels on the 
surface. 

This does not mean there is no law 
on the subject, but rather that general 
principles of law have not been given 
detailed application in an international 
treaty. Thus, the problem is that of 
applying these general legal principles to 
operational facts. From existing prin- 
ciples we can generally conclude that 
naval forces in time of peace must 
exercise prudent seamanship to avoid 
endangering foreign submarines and 
must not unreasonably interfere with 
their right to navigate or conduct other 
lawful activities on or under the high 
seas. 

However, in the context of main- 
taining a submarine contact, additional 
unique facts are introduced. A specific 
example of this problem might be help- 
ful. There is some judicial authority to 
the effect that a submarine navigating 
submerged has a duty to remain clear of 
all surface ships. However, the rationale 
of the case was that since the location 
of the submarine could not be ascer- 
tained by other vessels unless it was on 
the surface, the burden of staying clear 
necessarily falls upon the submarine. It 
is therefore doubtful whether this legal 
precedent has any significant value 
where the surface ships involved have 
substantial capability to delect the 
presence of the submerged submarine, 
and are, in fact, deployed for that 
purpose. 

The international regulations for pre- 
venting collisions at sea were designed 
to deal with situations arising out of 
normal maritime traffic. Although their 
legal application is not so limited, there 
are no specific rules designed to handle 
a situation where one vessel actually 
desires to remain in close proximity 
with foreign vessels over a substantial 
period of time. Therefore, we and other 
large naval powers must, recognizing the 
necessity of observing foreign naval 
operations on the high seas, rely on 
general rules requiring prudent seaman- 



259 



ship and prohibiting unreasonable inter- 
ference. 

The right of the United States to 
conduct naval exercises on the high seas 
is protected under international law 
from unreasonable interference. It 
would be difficult to attempt to lay 
down hard and fast rules of reasonable- 
ness in advance where ASW operations 
are concerned. The reason for this is 
relatively simple. Both the United Stales 
and the Soviet Union have interests on 
both sides of the issue. We are each 



concerned with the rights of our sub- 
marines as well as our ASW forces. It 
would be impractical to lay this ques- 
tion before a large international con- 
ference in order to develop a lawmaking 
treaty on the subject. 

This is not an ideal situation, but it 
illustrates that in practice a situation 
no! subject to existing detailed legal 
rules can prove generally workable. 
Soviet reaction to quite a few contacts 
indicates they consider them significant 
naval incidents. 



t 



260 



MARINE MINERAL RESOURCES: 
NATIONAL SECURITY AND NATIONAL JURISDICTION 



Robert A. Frosch 



Introduction The various leaflets and 
letters announcing this Symposium have 
listed "Matters of Military Concern" as 
the topic of my address. Considering the 
far-reaching complexities involved with 
the oceans' resources today and at the 
same lime, the vastness of the military's 
oceanic interests, and responsibilities, I 
think it is important that we word the 
topic with greater precision to read 
"Matters of Military Concern Connected 
with Marine Mineral Resources." 

The scope and nature of civil activi- 
ties in the oceans and on the seaheds is 
increasing rapidly, and current techno- 
logical developments indicate that ex- 
ploitative activities on and heyond the 
continental shelves will continue to 
grow in hoth magnitude and variety. 
Such growth will logically result in 
various types of physical plants lor 
extractive or processing purposes, trans- 
portation and life support systems, 
power generation plants and other 
appurtenances of marine mineral indus- 
trial activity. 

At the same time, international po- 
litical interest in the oceans and seaheds 
has been aroused in recent years by the 
1958 and 1900 United Nations Con- 
ferences on the Law of the Sea, hy the 
growing international exploitation of 
fisheries, by the seaward steps of the 
petroleum industry, and hy growing 



interest in the exploitation of marine 
mineral resources. This is also demon- 
strated in part hy the current activities 
of the United Nations 1 \d Hoc Com- 
mittee on the Seaheds, and by sugges- 
tions from various quarters, hoth at 
home and abroad, to the effect that 
man is churning the oceans into legal 
chaos, and consequently sweeping new 
international legal action is required to 
define a law of the seabed. We can 
expect this interest to increase rather 
than diminish in the future. 

Both the technological and the po- 
litical developments relating to marine 
mineral resources are of professional 
concern to the military: the first, be- 
cause they will give rise to a new order 
of military requirements along with new 
problems i>f accommodation between 
military and other uses; the second, 
because they have the potential for 
changing the traditional nature of the 
freedom of the seas, and, in so doing, 
would have major implications for mili- 
tary aspects of the Nations security. 

Accordingly, I would like to address 
three topics: (1) requirements for mili- 
tary capability arising in connection 
with the exploitation of the mineral 
resources of the world ocean; (12) prob- 
lems of accommodation between mili- 
tary and nonmilitary uses arising from 
the exploitation; and (3) problems in 



261 



legal regimes (including arms control 
regimes) triggered (at least in part) by 
the problems and prospects of exploita- 
tion. In discussing these subjects I will 
consider them from the point of view of 
one responsible for military uses of the 
oceans and of military security, giving at 
best only passing notice to oilier aspects 
of overall national security, of which 
military security is only one ingredient. 
Many other aspects of these problems 
are being covered elsewhere in this 
Symposium. 

This is an exceedingly complex sub- 
ject, and many diverse views are being 
considered. The statements made in this 
paper should be considered as my 
thoughts on the subject and should not 
necessarily be interpreted as repre- 
senting official governmental positions. 

Military Uses and Responsibilities in 
the Oceans. As a foundation for my 
discussion, I will describe some of the 
principal aspects of the involvement of 
the military with the sea. 

Many military uses of the ocean stem 
from general uses of the ocean: Where 
man goes his problems go, where man's 
problems go his conflicts go, and where 
man's conflicts go his military forces 
follow. I note parenthetically that it 
sometimes seems to be implicitly as- 
sumed that removal of the military 
forces somehow removes the conflicts 
and the problems, but I see no reason to 
believe this, except in the occasional 
case where the presence of the military 
force makes the problem or the conflict. 
In any case we may call this the first 
class of military uses of the oceans; 
"General use of the oceans. 1 ' 

A second class of military uses of the 
ocean stem from special properties of 
the ocean, including the fact that there 
is no sovereignty there, the fact that the 
sea provides special kinds of conceal- 
ment, and the fact that it is an arena 
generally empty of human population 
concentrations. 



A third class of military uses stems 
from uses generated in response to the 
military uses called out by the first two 
classes, and by those in the third class. 
(I fold the third class into itself to avoid 
a useless sequence.) 

Within these categories lies a wide 
range of present and possible future 
military activities, most of which can be 
influenced by changes in national or 
international views of jurisdiction, or by 
access to and use of the ocean floors 
and seabeds; changes that could result 
from international political action re- 
lated primarily to the world's marine 
mineral resources. 

Included in the phrase "general use 
of the oceans" are the traditional, time- 
honored uses of the world's oceans to 
move military forces to or against 
foreign shores and to prevent such 
movements against our own shores. 
General use includes the protection of 
U.S. shipping, fishing, and other prop- 
erty at sea; it includes the entire spec- 
trum of naval activity-surface, sub- 
surface and in the air above the seas. 
Such use is the essence of naval power; 
if we are not careful in how we tamper 
with the factors that permit it we may 
harm our national interest. 

In the second category,--" military 
uses generated by special properties of 
the oceans, "--we include those uses 
which take advantage of the mobility 
and concealment made possible by the 
marine environment. The flexible and 
highly invulnerable POLARIS deter- 
rence system is a prime example of such 
use, as the follow-on POSEIDON system 
will be. 

The third category ,--"military uses 
generated by other military and by civil 
uses, "--includes such activities as anti- 
submarine warfare; air defense of fleets, 
forces, and merchant shipping; subma- 
rine warfare, mine warfare; search, 
rescue, and salvage missions; and 
oceanographic forecasting. Within this 
category, there are several possible mili- 



262 



tary uses of the continental shelves and 
seabeds. Saturation diving techniques, 
lor example, together with future sub- 
nicrsiblcs, sensors and tools may permit 
greater military use of ihe ocean floor. 
Such use could well be threatened or 
limited by changes in the legal regime 
for the deep oceans. 

Requirements Arising from Exploita- 
tion. As the Nations 's civil activities in 
the oceans and on the seabeds increase, 
the Navy can expect a considerable 
increase in tasks and requirements. At 
present, for example, a worldwide civil 
and military salvage network is in opera- 
tion under Navy management and con- 
trol. 

By law (PL-513 of the 80th Congress 
and 10 U.S. Code 7361, et. seq.) and 
policy (OPNAVINST 4740.2B), while 
the Navy does not commit itself to 
maintain salvage facilities in excess of 
Navy requirements, the Secretary of the 
Navy can and does provide necessary 
salvage facilities for public and private 
vessels upon suitable terms. In effect, 
the Navy is the principal salvage agency 
of the federal government, working with 
Navy vessels and contract services to fill 
gaps in normal commercial salvage capa- 
bilities where necessary. This work is 
carried out, worldwide, by the Super- 
visor of Salvage working under the 
Naval Ship Systems Command. In addi- 
tion, the Navy assists the Coast Guard in 
carrying out its statu tor)' responsibility 
for the safety of life and property at sea 
by providing additional men and ships 
when required. In fact, the Navy partici- 
pates in the traditional law of the sea: 
give help where help is needed. 

The growing numbers of research 
ships, submersiblcs, and divers; and 
recreational craft, submersiblcs, and 
divers; operating from the ncarshore to 
the deep ocean environment will in- 
evitably require more rescue and salvage 
operations. For example, as more and 
more divers experiment in the months 
and years to come with saturated diving, 



there may be an increased need for 
man-rated hyperbaric facilities just to 
handle emergencies resulting from such 
diving. Also, we can expect that in- 
creasing requirements for rescue of per- 
sonnel and salvage of material will he 
the inevitable results of growth in the 
fishing and maritime industries. The 
possible necessity and possibility of 
expanding the Navy's salvage network 
and increasing its capabilities to deal 
with such growing requirements is cer- 
tainly worthy of the most serious con- 
sideration. 

In this connection, there is a growing 
requirement for safety certification of 
commercial and recreational sub- 
mersibles. The Coast Guard has the 
responsibility for general certification 
and for the definition of standards of 
safety, etc., but because the Navy has 
the greatest capability in the federal 
government in the technology of sub- 
mersiblcs, we are working with the 
Coast Guard both in the initial stages of 
standards preparation, and to assist 
them in acquiring the necessary skills 
and capabilities to carry on the work 
themselves in the long term. I think it 
worth mentioning at this point that 
there is a longt tradition of cooperation 
between Navy and Coast Guard in carry- 
ing out our respective peacetime mis- 
sions, in addition, of course, to our 
close association in wartime. 

Navy certification of commercial or 
private submersibles is only in connec- 
tion with their use by the Navy or its 
personnel. 

As mineral exploration and exploita- 
tion activities (be they for sulphur, 
petroleum products, or heavy metals) 
increase and extend seaward, associated 
problems will increase, not only for 
rescue and salvage work, but also for 
protection and policing of U.S. 
nationals carrying out commercial ac- 
tivities on the surface, in the water 
column, and on the seabed. 

While the United States, of course, 
looks first to diplomatic or peaceful 



263 



legal resolution of any problem of the 
protection of its citizens, when engaged 
in lawful activity on the high seas 
against arbitrary interference by other 
powers, or by piracy, this has to be 
backed up by a military potential. This 
requirement may be expected to extend 
to similar lawful activity in the water 
column or on the seabed. Such protec- 
tion would, again, presumably be a 
responsibility shared between Navy and 
Coast Guard, depending somewhat on 
the nature and location of the problem. 
Clearly we will need the military capa- 
bility to operate everywhere technology 
permits exploitation, if we are to fulfill 
this requirement 

These new and increasing challenges 
relating to marine mineral resources 
activities are functions for which the 
Navy and Coast Guard will accept re- 
sponsibility as part of their overall 
missions. We should remember, how- 
ever, that they are requirements that 
may demand an expanded effort on the 
part of the Navy and Coast Guard in 
terms of manpower, operating forces, 
shore facilities, and funding. 

Problems of Accommodation. An- 
other factor of interest to the military, 
stemming from marine technological 
development, will be the effect, in terms 
of interference or hazards, that the 
growing number of offshore and deep 
ocean platforms, structures, ships and 
related activities have on military opera- 
tions in the marine environment. The 
Navy, for example, will have to be more 
and more on guard against physical 
interference from moving objects; in 
turn, it will have to be continuously 
aware of locations at which there are 
on-going marine resource exploitation 
activities. A partial list of expanding 
activities posing interference problems 
would include fishing, petroleum ex- 
ploration, drilling, petroleum produc- 
tion operations, salvage work, recrea- 
tional boating, merchant traffic, and 
oceanographic surveys being conducted 



by means of ships, buoys, free subrner- 
sibles, towed submersibles, tethered sub- 
mersibles, seabed vehicles, and seabed 
installations. 

A recent review of the situation 
indicates that naval operations involving 
individual ship exercises have been most 
affected by (and presumably have most 
affected) nonmilitary oceanic activities 
which have included fishing, merchant 
traffic, recreational boating, and ocean 
survey operations. To a lesser degree, 
amphibious, gunnery, and replenish- 
ment operations, antisubmarine warfare 
exercises, and air-sea rescue operations 
have been affected by the same kinds of 
interference. Minesweeping and mine 
hunting experimental work and exer- 
cises have experienced interference from 
recreational boating, fishing activities, 
oil drilling operations, and the establish- 
ment of artificial reefs. 

While nonmilitary interferences have 
increased in recent years, they have not, 
by-and-large, created serious problems 
for the Navy, and we hope that naval 
operations have not created serious 
problems for others. In the great ma- 
jority of reported interference incidents, 
the Navy ships involved have either 
accommodated or adjusted to the non- 
military activity. The Navy has, for 
example, modified operations suf- 
ficiently to permit their completion 
with minimum interruption; in many 
cases it has solved the interference 
problem by giving more sea room to the 
nonmilitary activity. It has largely ac- 
commodated the oil industry in this 
fashion by moving seaward and away 
from interaction with drilling and pro- 
duction operations. 

The Navy is a firm believer in the 
concept of accommodation of many 
different users, a concept which is, of 
course, fundamental to the present law 
of the sea. For example, the Convention 
on the Continental Shelf authorizes 
coastal nations to erect installations on 
their shelves to explore and exploit 



264 



seabed and subsoil resources, but at tbe 
same time, stipulates that this exercise 
of authority must not result in any 
unjustifiable interference with naviga- 
tion, fishing, or conservation of living 
resources. The Gulf of Mexico offers an 
excellent example of the successful 
application of this concept in an area of 
high-intensity marine activity. 

In sum, while this "crowding" of the 
oceans is of concern to the military, it 
does not pose an insurmountable prob- 
lem. As we have for many decades, 
suitable arrangements will be made for 
multiple users using the historic prin- 
ciple of the international law of the sea 
as codified in Article 2 of the 1958 
Geneva Convention on Law of the Sea. 

One further point to keep in mind, 
however, is that it is not necessarily easy 
to move a military use of an area. The 
costs may be high, perhaps so high as to 
be prohibitive, particularly when exten- 
sive on and offshore facilities such as 
ranges are involved. This suggests the 
need for careful long-range planning by 
all potential users of an ocean area so 
that future conflict may be minimized. 

Problems Arising from Possible 
Legal Regimes. Present-day naval opera- 
tions are conducted in an international 
legal regime in which the principle of 
freedom of the high seas prevails: All 
nations have an equal right to use the 
high seas, one nation may not un- 
reasonably interfere with the lawful use 
of the high seas by another, and each 
nation has jurisdiction over activities 
conducted on the high seas under its 
flag or nationality. 

Under the present regime, national 
jurisdiction over exploration and exploi- 
tation of the seabed is limited to a 
relatively narrow offshore area adjacent 
to the coastal nation and short of the 
deep ocean seabed. In general terms, the 
law of capture applies to marine mineral 
resources, with title to the resources 
vesting only once they have been 
dredged, mined, or otherwise removed. 



The explorer and exploiter are both 
protected and limited by the require- 
ment that each user have reasonable 
regard for the activities of other users. 
The user's nation can control his marine 
operations. 

Changes to the international law of 
the sea will undoubtedly be required, as 
changes have been required and made in 
the past. In all likelihood, it will be 
essential, for example, for nations to 
agree on a precise outer limit for the 
extension of national jurisdiction under 
the regime of the continental shelf. 
Nations may also ultimately need to 
resolve conflict-of-use problems on the 
seabed and subsoil of the deep oceans. 
As indicated by my earlier comments, 
the problem of such conflicting use on 
the high seas is not a new problem. In 
the past, as specific problems have 
arisen, specific solutions under interna- 
tional law have been devised to provide 
for an accommodation of interests. 
Lying behind these specific rules is the 
general rule of international law that 
one use of the high seas may not 
unreasonably interfere with other lawful 

uses. 

Any number of suggested new 

regimes for the world's seabeds, their 
exploitation, and their ownership are 
being advanced, most involving either 
greater restrictions or greater interna- 
tional involvement than does the pre- 
sent regime. 

Under the terms of a Flag State 
Regime, for example, a nation would 
have exclusive jurisdiction over a vessel 
flying its flag, and it would have re- 
sponsibility with regard to what those 
individuals operating under its flag 
could lawfully do in light of the rights 
of other nations. The nation of the 
marine minerals explorer or exploiter 
would have a protective interest in the 
resources to be exploited within a rea- 
sonable area, although national sover- 
eignty over areas of the deep ocean 
seabed would be prohibited. 

The Median Line Kegime would have 



265 



the coastal nations divide the entire 
oceans, seabeds and subsoil among them 
on the basis of median lines equidistant 
from the nearest land. In its ocean area, 
the shore state would control right of 
access, prescription, and appropriation. 

Alternatively, the International 
Registry proposal would have the estab- 
lishment of an International Registry 
Agency which would, for a fee, register 
flag state claims. The agency would 
presumably exercise some authority 
regarding competing claims, thus vali- 
dating certain flag state claims. 

Going one step further, the proposed 
regime of a Limited International Au- 
thority would establish an international 
agency with limited rights to lease the 
seabed and prescribe regulations, but no 
general ownership rights. 

Finally, a regime of Complete Inter- 
nationalization would include the estab- 
lishment of an international agency 
which would own the seabed, the sub- 
soil, and their resources with authority 
analogous to sovereignty over marine 
mineral resources. 

I would like now to point out an- 
other interim approach toward clarifica- 
tion of principles related to different 
seabed users. I refer to the Seabed 
Principles introduced by the United 
States at last month's meeting of the 
U.N. Ad Hoc Committee. From the 
military viewpoint, these principles, 
intended to guide nations and their 
nationals in the exploration and use of 
the deep ocean floor and its subsoil, 
offer a most useful approach to seabed 
problems. They do not imply a "freeze ,, 
on marine mineral resources exploration 
and exploitation activities while specific 
seabed rules evolve from I lie practice of 
seabed users or are negotiated in the 
abstract. 

Another aspect of the interaction of 
resource exploitation and military uses 
involves the problem of arms control. 
Mineral resources and arms control do 
not necessarily travel hand-in-hand; the 
two are often linked, however, in pro- 



posed new regimes for the marine en- 
vironment. As any arms control agree- 
ments relating to the continental shelves 
and deep ocean floors are a matter of 
critical concern to those responsible for 
the Nation's security, a brief comment 
on seabed arms control proposals being 
advanced, either as part of the proposed 
seabed regimes or otherwise, is in order. 

At present, subject to the provisions 
of the United Nations Charter, there are 
few restrictions on defensive military 
deployment and activities in the oceans. 
Coastal state consent is required for 
territorial sea, and to some extent conti- 
nental shelf operations. Additionally, 
there are the normal constraints of the 
rules of war, including the Geneva Con- 
vention's, the restraint against un- 
reasonable interference with other users, 
and the limited test ban treaty which 
prohibits underwater, atmospheric, and 
space nuclear tests. The various arms 
control proposals which have been dis- 
cussed, might, among other things, pro- 
hibit the stationing or affixing of 
nuclear weapons on the seabed, restrict 
the seabeds of the world for peaceful 
uses only or demilitarize them com- 
pletely. 

With regard to these proposals, the 
point I wish to make today is that 
several nations already have a capability 
to use the oceans and seabeds for 
military purposes. This situation dic- 
tates that any international effort to 
limit military uses of the continental 
shelves and deep ocean floors must be 
subject to truly effective controls and 
measures for verification: the ascertain- 
ment of treaty violations on the part of 
other nations. 

General Concluding Remarks. In all 

of the marine mineral activity, both 
political and technological, underway 
today considerable attention is being 
focused on the need to be able to 
distinguish more clearly between the 
continental shelf and the deep ocean 
bed. It is significant to note that this 



266 



distinction is not of great importance to 
the military as it views the proposed 
regimes for seabed mineral exploitation 
and arms control. The military seldom 
has need to make such a distinction in 
its oceanic operations, being concerned, 
instead, with the extent of national 
jurisdiction that is the breadth of the 
territorial sea. The Navy is concerned, 
however, that proposed seabed regimes 
might eventually nsult in claims and 
restrictions on the use of the super- 
jacent waters and secondly might lead 
to information and reporting require- 
ments that would pose unnecessary 
problems for military operations. While 
the Navy is free to operate on the high 
seas, and while it generally has the right 
of innocent passage through foreign 
territorial waters, it must gain the con- 
sent of the coastal state if it wishes to 
operate in foreign territorial waters. 

The military view has been, and 
continues to be, that any extension of 
territorial seas should be kept to a 
minimum, sovereignty over the conti- 
nental shelves (whatever their seaward 
boundary) should be closely limited, 
and the air space above the high seas 
should remain free. 

The security of the United States 
rests in part on the Navy's use of the 
high seas, and we would like to see the 
use and legal coverage of the high seas 
develop in such a way as not to impede 
this portion of our security unneces- 
sarily. The military has neither the 



desire nor the intention to impede the 
full development of marine mineral re- 
sources. Rather we see fuller exploita- 
tion as a natural and positive develop- 
ment, but one which will require new 
capabilities for policing and protection 
and thus poses new military problems. 
We hope that the development of the 
requisite law will proceed together with 
the development of exploitation and its 
technology so that the law will not 
impede the development nor channel it 
in directions that later turn out to be 
unwise or difficult to protect or police. 

I reemphasize the view that with the 
gradual evolution of specific rules based 
on practice it should be possible success- 
fully to accommodate traditional uses 
(including military uses) of the sea with 
future exploitation of the seabed. 

I might add that the Navy has an- 
other interest regarding marine mineral 
exploration and exploitation activities: 
that is, within the limits of national 
security, to make available from its 
ocean engineering program all the tech- 
nological and scientific information 
possible for use by marine mineral 
explorers and exploiters, information 
ranging from bathymetric data to the 
technical information required for sub- 
marines and submersibles. The Navy is 
most anxious to cooperate with the 
whole public and private community in 
developing a national program for the 
oceans with the objective of enhancing 
national security in its largest sense. 



v 



267 



A MARITIME SURVEY FOR 1970; 
SEAMEN, FISHERMEN, PROSPECTORS: 

WHO WILL OWN THE OCEANS? 

John D. Hayes 



Seventy percent of the surface of the 
earth is water, but for eons man lias 
been a land animal. Most of his history 
has been of his struggle to obtain a 
livelihood from that land and to shape it 
to his ends. In so doing, he has scarred it 
and wasted it. The great waters how- 
ever, have defied him and at times 
punished him cruelly for searching their 
secrets. Man today knows far more 
about outer space, visible to him each 
night, than he does about the dark of 
the oceans. He has walked on the moon 
but not on the deepest bottoms of the 
sea. 

Yet the waters have also served him 
well. They have long opened up their 
depths to him as a source of food. The 
Bible is rich in fish references, and 



fishermen of northern Europe found ihe 
Grand Hanks of Newfoundland decades 
before Columbus discovered America. It 
was only five centuries ago that Western 
man, with the help of the compass and 
the square-rigged ship, dared to cross 
the open, unknown ocean. In doing so, 
he broke out of his European peninsula 
and commenced the geographic age, 
whose results our own scientific age has 
yet to match. 

The oceangoing ship brought the 
centuries of discovery and exploration 
opened great new lands, made possible 
the dominance of the world by Europe- 
ans, and, above all, created the United 
States. This geographic age, one of the 
great outbursts of energy in history, 
became possible when the ship was able 



268 



to master its own element and remain at 
sea for long periods, thereby enabling it 
to transport landsmen and their goods 
to the far reaches of the earth. The men 
who worked and sailed these ships be- 
came known as seamen, a word that 
entered our language only in the 16th 
century. Their counterparts in the Mid- 
dle Ages were known as "shipmen." 

This geographic era is now over. In 
the present industrial age, chemicals and 
metals form the basis of our material- 
istic societies. For the present and fore- 
seeable future, the primary needs of 
these societies will be fossil fuels and 
the ores of iron, aluminum, and perhaps 
uranium. These raw materials are bulk 
commodities, and since they are seldom 
found where they are needed, they must 
be moved by some reasonably cheap 
means. The cheapest is water transport, 
and for this reason the ship is still very 
important. 

Before these raw materials can be 
transported by ship, they must be 
found, and the search for them is 
becoming more and more difficult. Be- 
sides the Arctic and Antarctic regions, 
the waters of the sea remain the only 
substantial unexplored area of the earth. 
So the sea now beckons and offers its 
challenge to the bold among prospectors 
as it once did to the same breed of 
seamen and fishermen. 

The realm of the seaman is the 
surface of the oceans, while the fisher- 
man uses the waters beneath it to a 
depth of at least a half mile. The 
prospector, on the other hand, needs 
the seabed, the ocean's bottom, for 
there is where minerals will be found. 
For the foreseeable future, this seabed 
will be the Continental Shelf, the area 
of relatively shallow water which ex- 
tends out from shore. 

At the Geneva Conference on the 
Law of the Sea in l ( ). r >8, one of lite four 
conventions adopted dealt with the 
Continental Shell. In force since M) 
June 1954, article 2 (I) of this conven- 
tion provides: "The coastal state 



exercises over the continental shelf sov- 
ereignty rights for the purpose of ex- 
ploring it and exploiting its natural 
resources." However, articles 5 (1) con- 
tains a joker: "The exploration of the 
continental shelf and the exploitation of 
its natural resources must not result in 
any unjustifiable interference with navi- 
gation, fishing, or the conservation of 
the living resources of the sea." 

These articles reveal that the oceans 
are no longer just a water resource, and 
seamen and fishermen must prepare 
themselves for the inroads of landsmen 
into their traditional domains. With 
these landsmen will come imposition of 
municipal law upon maritime law and 
endless litigation on a variety of sea 
questions. 

The history of international law indi- 
cates that its lasting precepts and prece- 
dents are established not by treaties and 
conventions but, as in other forms of 
the law, in the courts. One has only to 
look at a map of the Gulf of Mexico or 
the North Sea to presage the political 
and legal controversies that article 2(1) 
will cause. 

Another future maritime legal trend 
no doubt will result from litigation 
resulting from collisions between ships 
and oil rigs. About 50 such collisions 
look place in the Gulf of Mexico in 'i 
years. There are aLout 2,000 oil well 
structures off the coasts of Texas and 
Louisiana, some as far as CO miles out at 
sea. Although the areas in which they 
are located are legally the high seas, it 
has already been necessary to restrict 
the movement of ships in these locali- 
ties. In the approaches to many of the 
gulf ports, the U.S. Army Corps of 
Engineers has established shipping lanes 
which are shown on Coast and Geodetic 
Survey charts. These lanes, in some 
cases, extend out as far as 120 miles 
oil shore. 

The piospcclor's encounter wild llie 
fisherman may be more dire than that 
with the seaman. Fishermen are a 
complaining lot, always blaming 



269 



someone other than themselves for their 
disappointing catches. Any destroyer 
sailor knows what the explosion of a 
depth charge does to fishing for miles 
around. The search and recovery of the 
missing nuclear weapon off Palomares, 
Spain, early in 1966 curtailed the lucra- 
tive shrimp trawling of Francisco Simo 
Orts. The United States has been a long 
time settling Simo's claim for damages 
and services. And in the waters off 
Palomares, a deep submersible touching 
the bottom would cause a cloud of 
sediment that would hamper search 
operations for hours. This indicates that 
strip mining of the seabed, a practical 
possibility today, would foul the waters 
as this technique has scarred the land. 

Who are these men— seamen, fisher- 
men, prospectors— who contend for the 
oceans? 

SEAMEN AND THEIR SHIPS 

Man still cannot cope individually 
and directly with the sea as he can with 
the land; he must do so in conjunction 
with a tool, an envelope or vessel which 
contains a bit of his own environment. 
This tool, this vessel, is called a ship, 
and seamen work it and make it do their 
bidding. They thereby give it life of its 
own to an extent that they consider 
"her" to be almost an animate object. 
The ship still remains the largest, the 
most complex tool that man has yet 
devised. 

Most maritime operations, therefore, 
are still conducted in terms of ships, and 
it will be ships rather than seamen that 
will be discussed in this section. Com- 
mercial ships are composed of three 
primary types, carriers of dry cargo, of 
liquids, and of fish. At one time there 
was a fourth category, passenger ships, 
but these have been largely displaced by 
the airplane. 

Bulk Cargo Carriers. Since 1956 
world seaborne trade has been increas- 
ing at an annual rate of almost 7 



percent. The ships that carry this trade 
are relatively new, two-thirds of them 
being less than 10 years old. Seventy 
percent of this seaborne trade is now in 
bulk commodities comprising the food- 
stuffs and raw materials necessary to 
support populations and the basic indus- 
tries of industrial nations. This bulk 
material is carried in ships specially built 
for the purpose and divided into cate- 
gories, the tanker and the dry-bulk 
carrier. Even this breakdown no longer 
holds entirely, as smaller tankers are 
being employed in the grain trade, and 
ships are being designed so that they can 
carry either liquid or dry cargo in any of 
their holds. 

Low-cost water transport for bulk 
commodities is feasible because large 
quantities can be moved, and fast load- 
ing and discharge are possible. Tankers 
have now reached sizes three times 
larger than any warship ever built. The 
limitation on size is determined only by 
characteristics of the ports to be entered 
and by depths of water in critical 
seaways. Even before the Suez Canal 
was closed by the Arab-Israeli war, 
petroleum in increasing quantities was 
being moved around Africa by ships 
larger than 70,000 tons, the limiting 
displacement for that canal. Displace- 
ment and draft of one of the largest 
ships recently built, the 206,000-ton 
Japanese Idemitsu Maru, were deter- 
mined by the 60-foot limiting depth of 
Malacca Strait which she traverses on 
her run between the Persian Gulf and 
the home country. 

In the overseas movement of basic 
commodities, the United States is both 
an importing and exporting nation. Two 
major wars and a voracious industrial 
economy have made telling inroads into 
our once plentiful resources. Heforc 
World War II the United Stales was able 
to supply all of its iron ore needs, but 
now 35 percent of these needs are 
imported, mostly from the ore-rich 
areas of Canada and South America. 



270 



In petroleum the United States is still 
able to supply its own requirements but 
only because this mineral is now being 
extracted offshore in increasing quanti- 
ties. The demands of European coun- 
tries and Japan for petroleum are heavy 
as these nations shift from coal to oil 
economies. Since no major petroleum 
sources within these areas have been 
developed, the parade of tankers from 
the Middle East and North Africa to 
Europe and Japan is increasing. 

The United States exports 70 percent 
of the world's coal shipments and 51 
percent of its grain. The coal which 
mostly